Public Bill Committee

[Frank Cook in the Chair]

Clause 100

Sentencing Council for England and Wales

Amendment moved (this day): 150, in clause 100, page 60, line 17, at end insert
(1A) The purpose of the Council shall be to issue guidance to sentencers, having particular regard to the effectiveness of each form of sentence in reducing re-offending..(Alun Michael.)

Frank Cook: I remind the Committee that with this it will be convenient to discuss the following: clause stand part.
Amendment 160, in schedule 13, page 148, line 20, at end insert
(c) 6 members appointed by resolution of the House of Commons..
Amendment 161, in schedule 13, page 148, line 20, at end insert
(c) 6 members appointed by the Prime Minister (independent members)..
Amendment 158, in schedule 13, page 149, line 2, after to, insert
their experience and capacity for evaluating evidence on the effectiveness of different sentences, and to.
Amendment 162, in schedule 13, page 149, line 7, at end insert
(5) When appointing independent members, the Prime Minister shall have regard to their experience of and capacity for assessing evidence especially in relation to the effectiveness of sentences in terms of reducing re-offending..
That schedule 13 be the Thirteenth schedule to the Bill.
Clause 101 stand part.
Amendment 153, in clause 102, page 60, line 33, at end insert
(1A) In proposing sentencing guidelines the Sentencing Council must have specific regard to the comparative effectiveness of different sentence options and indicate the data, research findings or other evidence on which the Council has relied in preparing its guidance..
Amendment 151, in clause 102, page 61, line 25, at end insert
(aa) The relative effectiveness of different sentences in preventing re-offending;.
Amendment 152, in clause 102, page 61, line 28, leave out and their relative effectiveness in preventing re-offending..
Clauses 102 to 118 stand part.

Alun Michael: I am grateful for the chance to make a few final points in support of my argument that the Bill needs to be clear about the purposes of the sentencing council and about who should be on it and why. My main concern about a judge-dominated council is that the appeals process already allows judges to clarify the law. In considering whether to change or amend a specific sentence, senior judges comment on that sentence, which is what drives the lower courts.
It is worth remembering that judges can get it wrong. The number of appeals by the Attorney-General against unduly lenient sentences is one half of that equation; the other half is the appeals granted in the opposite direction. It seems to me that the driver for the sentencing council must be differentnamely, what works. Earlier, I undertook to give an example. I pray in aid the work funded by the EsmÃ(c)e Fairbairn Foundation, whereby judges went to see what actually happens with community sentences. That produced significant evidence that many judges were unaware of what such sentences mean in practice and what happens to the offenders given them. The work demonstrated the benefits of such knowledge. I also pray in aid remarks made by the hon. and learned Member for Harborough about the value of a degree of oversight of what happens after the sentencing decision.
Courts are still slow to use restorative justice, but there is considerable evidence that the experience of facing up to the damage done to victims is salutary in triggering reform in offenders. It is life-changing in a way that reduces reoffending, and thus the likelihood of new victims being created. However, the impact on victims is also massive: quite apart from the effect of having been able to give the offender a piece of their mind, some 73 per cent. of victims felt safer as a result of a restorative justice event. That is significant. We heard evidence from victim support groups and asked what victims wanted from the criminal justice system. Apart from the ideal situation of the offence not happening in the first place, they wanted to be certain that it would never happen again. That certainty is what good sentencing, the reform of offenders and the prevention of reoffending is all about.
The Justice Committees report on the Bill built on the recent consideration that it had given to sentencing. As a member of that Committee, I found its hearings extremely productive. In commenting on the sentencing part of the Bill, the Committee expressed a number of concerns. I say gently to the Minister that I fear that the Bill follows too closely the findings of the review undertaken by Lord Carternot the Lord Carter who is currently doing an excellent job in developing broadband Britain, but Lord Carter of Coles, who undertook a review of the impact of sentencing on prisons. I am sure that it was not intentional, but unfortunately his review was very poor and the evidence that he gave to the Justice Committee was probably the poorest that we received. We ended up with the impression that the report was rushed and not evidence-based. The concern is that the piece about the sentencing council as drafted follows the brief that he was given and the conclusions that he reachedthat is, phrasing about reducing the number of people in prisons. That is of benefit because if there are fewer people in prison they can be dealt with properly and rehabilitation can be more effective. I have no difficulty with that. However, it is the effectiveness of the sentencing that ought to be the driver, and the reduction in prison numbers ought to be a consequence of a better and more focused sentencing process.
The Select Committee respected the fact that
at the very heart of the debate is a consensus that the prison population is growing too fast and that custody, especially short sentences, is not an effective approach for many offenders in terms of achieving rehabilitation or reform; with prison often characterised as an expensive way of making bad people worse..
The Committee argued that the study to which I have referred was undertaken at high speed and perhaps that left flaws in it. Finally, the Committee expressed a concern
that an over-ambitious timetable had been set for the working group on a sentencing commission and recommended that the Government should not seek to implement major changes in this area without effective evaluation of the potential consequences and the resources required to make such changes effective. We remain of this opinion. Accordingly, we recommend the most careful consideration of those provisions of the Coroners and Justice Bill relating to the remit of the new Sentencing Council for...Wales.
I took that seriously and have listened to the evidence that we had in advance of the line-by-line scrutiny, which is why I have come up with these suggestions.
Marrying the focus on what works and is effective in reducing offending with the experience of the judges is a way of getting the right conclusion and a sentencing council that will improve the outcomes from sentencing and not just the logic of sentencing itself. It means a change to the Bill and I hope that Ministers, if they cannot accept my amendments today, will take away these thoughts and consider amending the Bill so as to deliver the objectives in a way that is more practical, more focused, and based on clear principles. I will not delay the Committee further, but I very much hope that by making these suggestions I have not sought to roll back what Ministers are doing but sought to make the sentencing council more focused, more effective and more successful in ensuring that the guidance given to courts is based on what will reduce reoffending, rather than on the particulars which, although important themselves, are not what the criminal justice system should be about.

Edward Garnier: The right hon. Gentleman has done us a service in setting out, as a critical friend of the Government, the issues that need to be considered when talking about the Sentencing Guidelines Council. I know that the right hon. Member for Knowsley, North and Sefton, East has served on the Gage committee, so he brings with himalbeit that he was not able to hear this mornings opening of the debatea considerable detailed knowledge of the workings of a sentencing council. He very kindly invited me to a meeting with Lord Justice Gage to look at his findings last summer, so he will know that what Lord Justice Gage and the right hon. Gentlemen and their colleagues are proposingwhat the Government are not proposingis an American grid system, so let us put that aside and concentrate on what we are doing.
In clauses 100 to 118, I can see that the Government are proposing evolution of the current state of play rather than a hugely revolutionary system, but there are pinchpoints that will divide the Committee in the way that evolution is taking place. I will describe them briefly.
First, from the official Oppositions point of viewI will leave the hon. Member for Cambridge to set out his stallwe do not accept that the new sentencing council should have the power to require sentences to follow its guidelines, as opposed to taking them into account. As the Committee will know, the current Sentencing Guidelines Council sets out its stall and guidelines and the courts are required to take those into account and explain themselves if they do not follow them. The Government propose that as a matter of compulsion, the sentences in the courtsbe they in the summary jurisdiction or the Crown courtmust follow them, unless there is an overriding reason for not doing so.
Secondly, the difference between us and the GovernmentI think that the Liberal Democrats are closer to the Governments position on this than we arerelates to the influence of resources on the sentencing process. We see the assessment of resourcesthe way in which the available space in the prison estate and capacity in the non-custodial criminal justice system are deployed in terms of how they are provided and paid foras essentially a matter for the Executive: the Ministry of Justice and those who advise Parliament. However, those factors should not impinge on the sentencing in any given case.
It may be true that legislation may follow an assessment made by the Sentencing Guidelines Council. Let us say, for example, that putting every burglar into custody would require 100,000 prison places. That is information the Government must digest, and which, if they agree with it, they must supply to Parliament, so that Parliament, advised by the Government, can reach a conclusion about what to spend on prisons; but when it comes to sentencing in particular cases, or in generic types of case, the sentencer must be free to give the sentence that he or she finds appropriate as a matter of justice, bearing in mind all the usual factors, such as the facts of the particular offence, the impact on the victim or society in general and the circumstances of the defendant. However, it should not, in our view, influence the sentence in a particular case, that a magistrate in, say, Exeter should be told that there is a shortage of prison places in a particular area of the country or across the country. That is a matter for the Government to sort out, rather than individual sentencers. It is simply not possible for a sentencer to have regard to the available resources across the whole countryor even across the region.
Bearing in mind the guillotine that we are under, it will not be possible for us to express our concerns about clauses 100 to 118 individually. I therefore propose, subject to your advice and direction, Mr. Cook, to call three symbolic votes. I make no secret of that, and I am giving the hon. Member for Wrexham notice so that he can deploy his resources, having assessed whom he has available. I do not expect to win any of the votes, but it is important that we mark the difference between the Opposition and the Government sides of the Committee, so that nobody can be under any misapprehension. I will ask the Committees opinion on one clause stand part. The most sensible way to do that is to pick the first clause from the 18 clauses that we have to deal with in relation to the clause stand part debates. I shall then ask your permission, Mr. Cook, for a Division under clause 102 on amendment 244, which I shall move formally at the appropriate time. That will enable the Conservative party to express its concern about what I headline resource assessment. After that, I shall then ask the Committee, with your permission, to divide on amendment 248 under clause 107, which deals with the follow/have regard to point that I have outlined.
I appreciate that the Divisions on amendments 244 and 248 may not happen until later in our proceedings, but it is important that I set out my stall now because I am not in the business of making clever-clever points about catching the Government by surprise. That would be unproductive and have no huge value. It is important that we put our concern on the record and, it is fair to say, that we explain those points on which we share the concerns of not only the right hon. Member for Cardiff, South and Penarth, but other members of the Committee.
I am beginning to sound like a retired colonel from somewhere or other, but in my experience, sentencing is the most difficult part of the criminal justice process. Those who have been a magistrate and thus a sentencer, as the right hon. Member for Cardiff, South and Penarth has, and those who have been an advocate in front of the Crown court as well as the magistrates court and have had to mitigate on behalf of their clients who are up for sentencing, as has my hon. Friend the Member for Rugby and Kenilworth, will agree that it is not easy. When we read some of the intemperate criticism of judges and magistrates in the tabloid press, I am sure that we in Committee all agree as reasonable people that, in large part, that criticism is unfair. Clearly, from time to time, things go wrong, but the unduly lenient sentence appeal system that the Attorney-General can operate, which the right hon. Gentleman mentionedalthough he would be the first to admit that such sentences are a tiny proportion of the number handed out during a given yearprovides a correctional device. It also enables the Court of Appeal criminal division to gather up either individual cases or groups of cases so that it can give thematic judgments on particular types of sentence.

Alun Michael: I intervene on the hon. and learned Gentleman simply to say that he underestimates the importance and significance of the success of appeals against unduly lenient sentence, given that the threshold is high and they have to be not only unduly lenient, but unreasonably so. Several hundred cases have reached that threshold. It is not a big point, but it is more significant that he is suggesting.

Edward Garnier: I do not need to have a long argument about the matter. Statistically, the number of cases is tiny compared with the number of sentences passed each year. Let us just leave the matter there and allow the Committee to make a bit more progress.
On the wider points, I draw attention to some concerns that have been expressed to all of us by the Bar Council, which sent us a brief on such aspects of the Bill. On the have regard as opposed to follow point, it says that the stricter approach that the Government advocate,
a) will involve an artificial exercise of comparing the facts of an individual case with an abstract list of criteria (when having to decide the most comparable category), which may simply generate more argument and appellate activity;
(b) may make it more difficult for a judge to exercise independent judgment in a particular case if it seems that there is a burden on the defendant to demonstrate that a guideline sentence would not be in the interests of justice;
(c) could consequently have the effect of increasing the prison population if judges are constrained to pass longer sentences than they might otherwise pass or feel that they may be criticised or appealed when showing leniency.
In any event, unduly lenient sentences can be and are appealedthat was the point I discussed with the right hon. Gentlemanso that if a judge is overly generous, the sentence can be increased. That neatly describes my concerns about amendment 248, so when we come to discuss it, I will not go beyond what I have already said. 
I also draw the Committees attention to a useful report produced last year by the Prison Reform Trust entitled, Creating a Sentencing Commission for England and Wales: an opportunity to address the prisons crisis. I am not going to read out everything in it, but it contains a number of interesting suggestions, some of which are more in line with the Governments proposals than mine. None the less, it is a useful resource document that describes the issues that we need to consider. We do not have time today to consider those matters at length or in the detail used by the Prison Reform Trust in its report; instead, I will pick out one or two salient points with a view to helping our deliberations.
It is undeniable, and I hope uncontroversial, that there is a prison capacity crisis. The figures speak for themselves: when the Government came to power in 1997, there were 60,000 to 61,000 people in prison; there are now approximately 83,000the figure goes up and down around that point. Whatever one thinks of people who commit crimes and what they do or do not deserve, the prison population has grown in an uncontrolled way for almost two decades.
The Prison Reform Trust says that there is extensive sentencing disparity. That is debateable, but it is what a lot of people think. The opening remarks made by the right hon. Member for Cardiff, South and Penarth suggest that he agrees with the Prison Reform Trust. I suggestI might be wrong as I have not done any research into thisthat the disparity may be greater in the magistrates courts than in the Crown courts. However, I have no evidence for that, it is just a hunch.
The Prison Reform Trust says:
Any effective response to these problems needs to take into account all the factors that are driving up the prison population and leading to disparity.
That is a sensible and uncontroversial suggestion.
The quality of media coverage of law and order issues, public opinion about crime and punishment, and the associated penal populism which characterises political debate all need to be factored into any strategy for containing the prison population.
Criminal justice policy and sometimes individual sentences are matters of huge interest to the public; they are also matters of public interest. I hope that the Government are sufficiently self-confident to resist knee-jerk reactions from newspapers that want stories to fit their headlines, rather than allow them to design or have too great an influence on criminal justice policy. The public unquestionably have a proper interest in participating in public debates about the shape of our criminal justice and sentencing policies.
The Prison Reform Trust goes on to note:
Simply constraining sentencers discretion, without addressing the underlying pressures for tougher sentencing, is not a viable, long-term solution to the prisons crisis.
I wholly agree with that. It continues:
A long-term solution needs to have both political and technical dimensions to it.
Again, that is not controversial.
How can a sentencing commission address the crisis? The report continues:
A sentencing commission can serve three main functions: providing guidance to sentencers; gathering and providing information and statistics for monitoring, planning and policy development;
I do not mind either of those, but I am concerned that the information should influence the Ministry of Justice and the Executive, not the sentencer.

George Howarth: The proposals in the Bill, and those of the Gage committee, are that we specifically reject the use of the word commission in favour of the phrase sentencing council, which builds on the experience that already exists.

Edward Garnier: I am referring to the Prison Reform Trust report that came out in 2008. It does not matter, for our purposes, whether it is a commission or a council, but we are in the business of deciding what it should do and what its powers should be.
Thirdly, the Prison Reform Trust says that a commission or council should provide
community engagementto inform and to consult with the public.
Again, that seems to be wholly outside the realm of the courts; such matters are for the Government and academics and are wholly disconnected from the court system.
On guidance for sentencersthis takes us back to my point about have regard to and followI am concerned that under the Bill, the sentencing council, armed with its resource assessments, will issue instructions, which is what they will essentially be, to sentencers in both the Crown and magistrates courts. Those willif not expressly, at least by implicationsay, We can no longer provide custodial or non-custodial resources for the following types of offence. Therefore, although in the past one might have thought it appropriate to give a custodial offence to a persistent burglar, or to give a particular type of community sentence to a less serious offender, one could not do so now, because we cannot afford it.

Maria Eagle: The hon. and learned Gentleman is embarking on a flight of fantasy. The proposals in the Bill do not do that at all.

Edward Garnier: The Minister says that, but if one looks at how the clauses are constructed, it is clear that clause 109, which deals with resource implications of the guidelines, will feed into the guidelines, which must be followed, rather than simply be taken account of. We can have a perfectly friendly argument on whether that is a good idea, but it seems to me, after reading the relevant clauses under discussion this afternoon, that as night follows day, the guidelines published and promulgated by the council will have that effect.
I know that the Government and the Liberal Democrats think that that is a good thing, and so does Mr. Martin Narey, who used the analogy of rationing in the health service. I did not think that that was a true analogy, but none the less, the Labour and Liberal Democrat parties, and no doubt many others, think that this is a good idea. I do not happen to agree.
Maria Eagleindicated dissent.

Edward Garnier: The Minister shakes her head and says that I have got it all wrong. But that is what seems to come out of the Bill, given the way in which it has been spun. She can tell me why I am talking nonsense in a minute, either from a sedentary position or on her feet. Either way, I shall listen with interest, but either way we are right to be deeply concerned. We are not engaged in some student union activity. We are right to be concerned and to warn the Government that, if they interfere with the discretion of sentencers to adjust their sentences to fit with Government resources, although that is sensible in many ways, in this sphere of public policy it is ill advised.
I shall not go through the Prison Reform Trusts research and monitoring or community engagement recommendation for a sentencing council, because time does not permit and those matters are not strictly relevant to my amendments. What I shall dobrieflyis discuss some of its key recommendations, to see how they fit within the proposals that are coming from the Government and that came from the Gage committee.
The Prison Reform Trust recommended:
A well-resourced, unitary sentencing commission should be set up to replace the
Sentencing Advisory Panel and the Sentencing Guidelines Council. In the current recession, it will be interesting to see how well resourced that is, but if the Bill is passed we shall get a unitary sentencing commission.
Secondly, the trust recommended that the commission
should have a wide range of functionsprincipally the provision of sentencing guidance, research and monitoring, and community engagement,
although I worry about the real definition of guidance in relation to sentencing.
Thirdly, the trust says:
The sentencing guidance produced by the commission should be based on the existing SGC guidance and should thus permit sentencers to give due weight to offender-related factors in passing sentence. Parliament should consider restricting the scope for departure from the guidance
an area of disagreement, where the Government with their follow and we with our take account part company.
The commission should monitor compliance with the guidelines, contribute to government forecasts of prison population trends, assess the impact of proposed reforms to sentencing policy, and conduct original research.
I have no issue with that fourth recommendation, which is sensible. However, its impact on sentences concerns us.
The fifth recommendation is that
Community engagement should be seen as a core function of the commission; this would entail both informing and educating the public about sentencing, and undertaking public consultation.
Again, I have no objection, but that does not seem to be something that should impinge on the activities of sentencers without the intervention of legislation on particular types of offence.
Sixthly, the trust states that
The commission should aim to be an authoritative and trusted source of non-partisan information and guidance on sentencing practice and policy.
We need not get hung up about that. Our real issue is with the effect that resource assessments will have on the sentencing guidelines and the requirement under the Bill for sentencers to follow strictly the guidelines of the commission.
In relation to clauses 100 to 118, I have described a number of matters in particular amendments, but subject to the discussion that we had right at the beginning, perhaps before the Committee officially started, I had better wrap up my remarks as I have, without asking the Committee to permit me to discuss each separate set of amendments, seriatim.

George Howarth: I apologise that I was not here for the start of the debate. Unfortunately, or fortunately depending on ones point of view, I had to attend a meeting of the Intelligence and Security Committee this morning, at which we were interviewing the Foreign Secretary about one of the cases mentioned in this Committee last week. My presence there was, unfortunately, necessary.
I want to make a couple of brief points in response to the hon. and learned Gentleman. He mentioned the Gage report and generously said that I was a member of that groupon which I sat throughout its proceedingsand briefed him. We offered to brief the hon. Member for Cambridge, but unfortunately he was unable to attend and sent a researcher along at the time. I am not saying that as a criticism; he had the opportunity but was unfortunately unable to take it.
I want to enlighten the hon. and learned Member for Harborough on one point. He said that we carried out a courts survey. We did that because we were alarmed, at the beginning of our inquiries, that there was a complete lack of data on sentencing. In fact, we covered that in chapter five of the report. The hon. and learned Gentleman speculated about whether the departures from guidelines might have been greater in the case of magistrates courts compared with Crown courts. I am unable to answer his question because we only surveyed Crown courts10 of them over one month, with 229 returns. I will not go into the statistics, but there was a significant departure from the guidelines in a number of cases. If the hon. and learned Gentleman has the time to read the document before we get to Report stage, he might find the direction of travel of those departures surprising, but now is not the appropriate time for me to get bogged down in that detail.
May I characterise the hon. and learned Gentlemans concerns? First, he is concerned that the procedure laid down in the Bill, which to a large extent follows closely the recommendation of the Gage report, is likely to be too prescriptive and therefore would fetter the courts discretion. I think that he is being overly cautious in his interpretation of what is intended to happen under the Bill and what the Gage committee intended. The senior members of the judiciary on that committeemagistrates were represented as welldefended their corner well against people like me who would have fettered the freedom of the courts a lot more, had I had my own way. However, I am here to represent what they said rather than my personal opinion. Those people explicitly set out in the report the ways in which the court needs to have discretion and those are repeated in the Bill. For example, clause 103(3) mentions mitigation. I will not go into the definition of that, but it is one of the discretions available to the court in determining specifically the circumstances that may soften the sentence as a result of mitigating factors. The courts are also able to decide whether a particular offence in particular circumstances was so bad that that aggravation should also be reflected in the sentence.
Clause 103 also mentions sentencing ranges. The hon. and learned Gentleman is right to say that we rejected as overly prescriptive the grid system that was studied in North Carolina and Minnesota. The direction that we went in, echoing what already happens in the Sentencing Guidelines Council, was to give ranges so that there will be some certainty, predictability and consistency in sentencing, because there is widespread concern that, currently, there is not always consistency in sentencing. Indeed, the data that we collected from our survey bore out that concern.
The hon. and learned Gentlemans first concern about the discretion of the courts being fettered is overstated. I hope that when he has had the opportunity to consider this matter more fully, he will realise that what we have recommended, and what is set out in the clauses, will allow considerable judicial discretion. I do not think that they will have the effect that he fears.
The hon. and learned Gentleman fears that we are tying resources too closely to sentencing. The working group debated this issue a great deal, and it was clear to us that there should not be a direct relationship. However, we also thought that if we can collect sufficient data to enable some prediction of the size of the prison population and the demand for community sentences and probation orders, it ought to be possible to predict what resources are likely to be available. That is not to say that sentences should be determined and guidelines produced with that in mind.
The hon. and learned Gentleman thinks that the Executive has such a role, but, last night, Parliament considered estimates. There was no Division, but nevertheless Parliament decides what resources are to be made available for every area of public expenditure, including prison places, custodial places, community sentences and probation. Although such estimates may go through on the nod without a Division, it is Parliaments responsibility to be aware of the relationship between sentencing and what we can predict about what might happen in the future, as well as the resources that will be needed.

Edward Garnier: The right hon. Gentleman enables me to put to him amendment 257, which says:
Whilst the courts may have regard to the availability of correctional resources, for the avoidance of doubt the courts must not pass a sentence that is wholly determined by resource assessments which are expressly intended for the guidance of the Secretary of State in planning for and providing such custodial or community sentences as he advises Parliament, and it considers, necessary in the light of such assessments.
How does that fit his response to my case? Let me make it clear that it is amendment 257 that I wish to press, not amendment 244; I may have misled him and others by referring to it wrongly.

George Howarth: The amendment that the hon. and learned Gentleman has just read out is unnecessary, but I expect that my hon. Friend the Minister will make that point better than me when she replies to the debate. The clauses follow closely what the working group thought appropriate, and his amendment, on which we will presumably be voting, is based on an overly cautious interpretation of what the clauses intend. However, it is probably better that my hon. Friend responds to that point, as I have risen purely to defend my committees recommendations.
Bearing in mind that my hon. Friend the Member for Wrexham said to me earlier that silence is goldenI seem to remember that that was a pop song in the 60s by the Tremeloes, and I shall not sing it to the committeeI shall conclude now.
First, however, let me repeat a point that I made on Second Reading. If we do not have a regard for resources or a means by which either the Executive or Parliament and sentencers know what is needed and ensure that it is provided, we will get a misalignment, which we have had in the past. Unless one provides a massive amount over and above what is needed to ensure that whatever sentence comes up, it can be accommodated, there will be periods of peaks and troughs. When we get peaks, what will inevitably happen is that the Government of the daywhoever they are and all of them have done itwill bring in early release schemes. Such schemes are the most unsatisfactory way of dealing with the problem. They are completely arbitrary and result in a loss of alignment between the sentence intended by the courts and what actually happens.
Although the hon. and learned Gentleman makes his points in good faith, they are based on a misinterpretation of what the working group said and how such a clause would work in practice.

David Howarth: I want to come back to the amendments tabled by the right hon. Member for Cardiff, South and Penarth because they are the crucial amendments in this debate. My attitude to many of the other clauses depends on the Governments attitude towards his amendments. If the Government looked kindly on his amendments and said that they want to see policy moving in that direction, I would be far more inclined to support what is in the Bill now than if the Government were to be hostile to them. I shall try to explain that in a few minutes.
In his amendments, the right hon. Gentleman is trying to focus what the sentencing council does on what works to reduce reoffending. That is the central issue. If we can reduce the risk of reoffending, we end up protecting the public. If we do that, we put the victim at the heart of the criminal justice system because we are ensuring that we have fewer victims in the future. The resource issue, about which the right hon. Member for Knowsley, North and Sefton, East was talking, is part of that. If we spend public resources on sentences that do not work as opposed to spending them on sentences that do, we are, by that very fact, allowing more crime than would have been the case had we used public resources in the best possible way. We have a duty to ensure that public resources are used in the best possible way to reduce reoffending and crime to the extent that we can.
As the right hon. Member for Cardiff, South and Penarth said, we know quite a lot about what works and what does not, and we should use such information. Obviously, we do not know everything. There are great acres of ignorance in criminology because it is not a field that has benefited from a vast amount of research money. None the less, we know some things, and we should work with them. For example, the right hon. Gentleman mentioned restorative justice. The evidence in favour of restorative justice is striking. It was done using randomised control trials and in a way that is comparable to medical research, using meta-analysis across a large number of small-scale trials. Each of those trials would not, in itself, show the effect, but when they are all added together the effect is striking. I am talking about not only the important effect on victims that the right hon. Gentleman mentioned, but the big effect on the number of crimes committed by offenders who have undergone that process. We are talking about big numbers herereductions of a quarter, compared with the other disposals that might have been used in those cases.
We know that certain forms of drug and alcohol treatment work. We know also that, for the most part, alcohol treatments work with violent offenders and drug treatments work with other offenders to reduce the amount of reoffending. Furthermore, we know that those treatments tend to work better in the community than in prison. There was some controversy in the press over the weekend about that point, but the press, as usual, missed out the point that what works to reduce reoffending is what protects the public in the longer term. On resource use, drug and alcohol treatment inside prison is not just less effective but massively more expensive than it is outside.
We know other things, such as how prison can work better and that education, training and work is the way to organise our prison system. If sentencers knew that such activity was not likely to be included in the prison sentence, they would understand what the sentence meant rather better than they do now.
We know what does not work, too. Before the break, I mentioned the research on short, sharp shocks, and it simply shows that they do not work. Some senior judges are wrong and believe the opposite, however, so external guidance needs to be given to them on that point. Policymakers do not know it either, and we keep returning to programmes that are proven not to work. In fact, we know that scared straight programmes not only do not work, but make things worse: they increase the reoffending rate. All that social scientific evidence must be fed into the system, but as the right hon. Member for Cardiff, South and Penarth said, if we just leave it to lawyers and judges, it will not be; it will just be treated as an external matter to be thought about theoretically and to cause external criticism now and then, but not to be built into the system. I fully support his attempt to build such social scientific thinking into the system and not just leave it on the outside.
In fact, I would go further and set up a national institute for criminal justice excellence, giving it the job of testing what works, using existing research and its own commissioned research, including studies into the effectiveness of existing sentences. We tend to evaluate new ideas, which is fine, but not old ones. We need to do so, however: we need to be able to compare old and new ideas. We know, as the right hon. Gentleman said, that short prison sentences do not work, but we need to know more and to compare new and old ideas systematically, so that we can allocate public resources in a way that works for the system and for future victims of crime.
The right hon. Member for Knowsley, North and Sefton, East made the point about how we keep sentencing policy in line with Government resource-allocation decisions. What we have done in the past, and what we might be trying to do with this legislation, is to resolve the issue either by allowing the sentencers to do what they wantso that the Government have to guess what they are doing and provide resources for whatever they guess, creating the immense problem, as the right hon. Gentleman said, of having to provide for over-capacity and, effectively, wasting resourcesor by allowing the Executive branch to tell the judicial branch what to do and how to sentence people. We do not want either, but that is what the sentencing guidelines and sentencing council proposal tries to do.
I would go even further. If we had something like a national institute for criminal justice excellence, it could feed into both the sentencing guidelines and Executive policy. Because both systems would be reading off the same hymn sheet, there might automatically be more co-ordination. They would be using the same evidence.
It should be obvious from what I have just said that I am not as sympathetic as the hon. and learned Member for Harborough to the argument that judicial discretion should never be narrowed. I think that there is a case for saying that judges should be required to take into account the evidence on effectiveness of sentencing. My main worry about the provisions is that they do not adequately take into account effectiveness, which is the purpose of the amendments of the right hon. Member for Cardiff, South and Penarth. However, even if the amendments were to be accepted, how would they work in practice?
For example, how would clause 103 work for a sentencer who is faced with a particular offender and is told to sentence according to the guidelines? The guidelines seem to tell the sentencer to start with a mechanistic view of retribution and then to move away from retribution if it is in the interests of justice to do so. The question then is how effectiveness gets built in. How does what we know about what works get built into such a system? That does not happen at present.

Alun Michael: I do not disagree with much of what the hon. Gentleman is suggesting, including a better structure of research, examination and comparison of outcomes across sentences. However, I think that it shows great ambition on his part to try to make that much further leap at the Committee stage of a Bill, when we are part way through. If we made the start that is contained in my amendments, we would be moving in the right direction and building on what has been done in the past that has been right; it is not a bad thing to have regard to things that have worked. It might well be that some of his more ambitious ideas would be a natural consequence a year or two down the line, but they would take time. Making what we are about clear would be an immediate step that would set us in the right direction.

David Howarth: The right hon. Gentleman is right and anticipates my conclusion. The provisions are not perfect and they are not what I would doobviously, the two are not always the samebut they are a move in the right direction.
As I said, I am worried about how clause 103 works. If the right hon. Gentlemans suggestions were looked on kindly by the Government, they would raise a problem that would need to be thought about regarding building effectiveness into the design of the ranges. The ranges seem to be designed so that retribution is the first step, and effectiveness and everything else comes second, but we need to think about how to do it the other way round.
I have some concerns about other clauses, as well, such as clause 105, which is about revised and urgent guidelines. Obviously, revision is fine, but I am slightly worried about making it too easy to pass urgent guidelines, because they are liable to be headline-driven, not evidence-driven. We need to be careful about allowing the system to work too quickly in some circumstances.
I am also slightly worried by clause 108, which deals with imprisonment for public protection, but perhaps I have misunderstood it. IPPs are part of the problem with the prison populationthey are a big part of the crisis of rising prison numbersand I would like the Minister to describe exactly how clause 108, which is about the application of the sentencing guidelines to IPPs and similar kinds of sentence, will work. As I read it, it seems that the guidelines apply to the notion of determinate sentencing in relation to IPP, but not to the decision of whether to impose an IPP in the first place. I hope that that is not right because if it is, the guidelines are being applied the wrong way round. They ought to be applied to the decision on whether to have an IPP at all. This is contrary to what the hon. and learned Member for Harborough was talking about, but I think that such a situation gives the judiciary too much discretion and will lead to a further expansion of the prison population in a way that we do not want to see.
Finally, I shall mention resources, to which the hon. and learned Gentleman referred. In a big way, the issue of resources is connected to the Governments attitude towards the effectiveness question. It seems that if effectiveness is built into the guidelinesin a real, not just symbolic, wayit is perfectly sensible to build resource use into the same pattern, because the use of public funds needs to be as effective as possible, given what we have got. However, if that is not to be the case and the sentencing guidelines are really going to be about retributivenessfor example, in relation to clause 103 and the rangeswith effectiveness as a kind of ill-defined back stop relating to ill-defined cases, I cannot see how resources are relevant. Resources are not particularly relevant to the harm caused by the defendant, the defence intention or the defence culpability, which is what clause 103 refers to.
I am in a bit of a dilemma. In a world in which the amendments of the right hon. Member for Cardiff, South and Penarth are incorporated into the legislation in a coherent way, I would be fully in favour of allowing the sentencing guidelines to be built up using resources as a starting point and, in fact, designing them in a strict way and saying that they must be followed by the judiciary. However, if that is not the case and retributiveness still rules the roost, I am not entirely clear why resources are in the guidelines or why judges have to follow them, because judges seem to me to be almost as good at working out retributiveness questions as sentencing councils.
In the end, the question is what do the sentencing councils guidelines bring to the table? I think that they can bring evidence of effectiveness from the outside to the tablethe kind of information and arguments that would not naturally occur to judges and lawyers in courts. That is why I said at the start that my attitude to much of the rest of the debate depends on the Governments attitude towards the crucial amendments tabled by the right hon. Gentleman.

Edward Garnier: Will the hon. Gentleman explain briefly what he meant by his reference to the kind of factors that would not necessarily or naturally occur to a judge? I did not quite follow that point.

David Howarth: They are the factors of the relative effectiveness of sentences given the social scientific evidence. I do not think that that naturally occurs to lawyersit ought to perhaps, but it does not. Lawyers tend to put such matters to one side and say, Thats very interesting, but the real stuff is how culpable the defendant was and how much harm the defendant intended or caused. That is the stuff referred to in clause 103 in relation to sentencing ranges.

Jeremy Wright: I wonder whether there is another problem that relates to clause 102. The hon. Gentleman will see that clause 102(11)(d) refers to the cost of different sentences when the sentencing council comes to construct the sentencing guidelines in the first place. In clause 102(11), there are a list of things to which the council must have regard, and subsection (d) links
the cost of different sentences and their relative effectiveness in preventing reoffending.
The difficulty is that they might not be the same thing. The most costly sentence might also be the most effective in preventing reoffending. Is there a problem there, and how would he resolve it?

David Howarth: Technically, one could multiply the two together, or divide one by the other, depending on how one wants to do it. However, the hon. Gentleman is right that that linking seems to put cost first and relative effectiveness second. The right hon. Member for Cardiff, South and Penarth has made that point in certain of his amendments, which would move the reference to relative effectiveness to the top of the list in clause 102. That was the whole point of some of the amendments.
The hon. and learned Member for Harborough referred several times to amendment 257. It could be argued that the amendment is not needed because it is implied already in the Bill and generally in practice, but it would be helpful to state that under the current systemthis is what the right hon. Member for Cardiff, South and Penarth saidindividual judges are not required to take into account the availability of prison places in individual cases. That is not at all intended; and it is very important to rule it out. Resource allocation questions should be built into the construction of the guidelines. After that, the application of the guidelines should be a matter of legal interpretation, not of getting judges to carry out economic assessments of the effects of particular sentences. That would be quite wrong, which is why, if the hon. and learned Gentleman presses his amendment 257, I shall support him.

Maria Eagle: I shall do my best to deal with this wide-ranging debate, which is now a stand part debate on the whole of part 4, chapter 1. I shall also deal with the amendments tabled by my right hon. Friend the Member for Cardiff, South and Penarth and those referred to by the hon. Member for Cambridge, which come slightly later.
The amendments raise a number of basic issues. First and foremost, I would like to make it clear that this part of the Bill establishes a new bodythe sentencing council for England and Walesand in doing so implements the recommendations of the working group chaired by Lord Justice Gage, on which my right hon. Friend the Member for Knowsley, North and Sefton, East sat. He provided us with a very useful run-through of the working groups intentions, and I agree with his points, although I shall not repeat them because he set them out very well.
The intention is not to fetter the proper sentencing discretion exercised by the independent judiciary; nor is it to tie sentencing decisions to the wider issue of the availability of prison places or of any other type of sentence, despite the fears that have been raised by the hon. and learned Member for Harborough and others during the evidence-giving sessions. I want to make it very clear that that is not the Governments intention. As I think that he accepted at the beginning of our remarks, ours is an evolutionary approach, as recommended by the working group. It builds on the good work of both the Sentencing Advisory Panel and the Sentencing Guidelines Council, which will have completed most of the major guidelines by the time that the new council starts work. Their work will be used as a foundation on which to develop a better understanding of sentencing practice, and will increase our ability to predict the impact of guidelines and inform the wider role of the new council.
The working group consulted widely on its recommendations, to which we are now giving effect, and there was strong support for an evolutionary approach, despite one or two of the revolutionary things that the hon. Member for Cambridge was edging his way towards in his remarks. We have not had a major falling out on that evolutionary approach. Nobody is in favour of the US-style sentencing grid, whether it is from South Carolina or Minnesota, and we all want to build on the good practice in respect of what is there, because we believe that guidelines help sentences. It is intended that the sentencing council will enhance consistency, make sentencing more open, ensure that the public understand and have confidence in sentencing, and generally be an improvement on the current arrangements. However, there will be a requirement on the council to prepare guidelines on the reduction of a sentence for a guilty plea on the application of the totality principle, which is necessary for the council to meet its duty to monitor the operation of guidelines under clause 110.
It has been suggested that what we are trying to do is unduly prescriptive: that clause 102 causes resources to be taken into account, that clause 103 has too rigid a sense of an arrangement for setting out the format of guidelines, and that clause 107, with its duty to follow guidelines, completes the coup d'Ã(c)tat of the destruction of the independence of sentencers. I am exaggerating only slightly some of the concerns that have been expressed. That is not the intention. When it draws up guidelines, the council must have regard to current sentencing practice, to the needs to promote consistency in sentencing and public confidence in the criminal justice system, to the cost of different sentences, to their effectiveness in reducing reoffending and to the councils monitoring of the application of its guidelines.
My right hon. Friend the Member for Knowsley, North and Sefton, East set out how little information was available to the working group when it started its work, so we can all see the sense of the monitoring that we are trying to get the new sentencing council to do. Apart from the monitoring, all the other arrangements are already there. There is not a requirement on the council to have regard to resources when drawing up or revising guidelines. As well as my saying that, my right hon. Friend the Secretary of State for Justice has made that clear on Second Reading. We do not resile from that.
Let me deal with the question of whether the format of the guidelines is too prescriptive, and other matters to do with clause 103. The clause provides that where a sentencing guideline relates to a particular offence, such as robbery, it must divide the offence into levels of seriousness based on the offenders culpability and on the harm caused. That clause sets out the format of offence-specific guidelines. It does so because clause 107, about which some concern has also been expressed, places a duty on a sentencer to follow the guidelines. So clause 107 makes it clear that a sentencer must indicate how he has followed the guidelines by reference to the ranges. Courts need to know that they have to follow the guideline range for the seriousness of the offence before them. That is necessary to meet the principle of promoting consistency and predictability, which was highlighted in the Gage report.
The format also reflects the way in which the offence-specific guidelines are currently framed by the Sentencing Guidelines Council, so there will not be an enormous departure from the practice in respect of the current arrangements. All the current offence-specific guidelines issued by the SGC already comply with the format set out in clause 103. However, because concern has been expressed about these matters, and because we have a record in this Committee of listening to concerns expressed by all Committee members, we are willing to look at clause 103 to ensure that there is sufficient flexibility in circumstances where this format might not be practicable. I give that undertaking to the Committee and hope that that might allay some of the concerns that have been expressed.
Concern was expressed about clause 107 and the duty to follow guidelines. Of course, that is a central provision of this part of the Bill, which sets out that the court must, in sentencing an offender, follow any relevant guidelines unless it is satisfied that it would be contrary to the interests of justice to do so. That provision attempts to give effect to the Gage report recommendation to enhance the current departure from guidelines test from a duty to have regard to guidelines to a duty to follow guidelines, unless it is in the interests of justice not to do so. However, again, the Government are willing to consider any amendments that might improve that clause or allay the concerns that have been expressed.
We certainly thought that having the ability to depart from guidelines in the interests of justice would guarantee judicial discretion in individual cases. We do not believe that the clause limits discretion, but we are willing to go away and think about this, and if members of the Committee, or others, want to suggest something that they think would be better, we will consider it.

Edward Garnier: That is extremely helpful, but we heard from magistrates in the evidence session, and I know from my conversations with judges, that they are concerned about the way in which clause 107 is phrased. Are the Government looking for further amendments to those that we have tabled, or will they, of their own initiative, be tabling revisions to clause 107?

Maria Eagle: We will be looking to come up with better formulations, but we are perfectly willing to listen to and meet anyone who has any ideas. Indeed, the Under-Secretary of State for Justice, my hon. Friend the Member for Lewisham, East, and I met magistrates before the Bill progressed to this stage, and I think that they left her room rather more reassured than when they entered it. None the less, we are willing to continue considering how best to ensure a balance between consistency and judicial discretion, because that is the prize that we all seek. We do not want to end up just with what we have, because it can be improved, and we are not trying to fetter discretion on sentencing in individual cases. Nor are we trying to do more than was set out in the report of the Gage working group, which we seek to implement. I am not going to argue that we have got it all completely correct.

George Howarth: My hon. Friend is being very thoughtful in her response, but does she agree that, regardless of any amendments that she might consider making at a later stage, the phrase
contrary to the interests of justice
in clause 107(1) gives quite wide discretion?

Maria Eagle: Yes, it does give wide discretion, but there is clearly some concern about that wording and concern that the clauses overall impact, in connection with the perceived impact of other clauses, will be to fetter discretion too much, but that is not our intention.

David Howarth: For those of us who think that the effective prevention of reoffending is the crucial issue, another concern is that the wording the interests of justice does not seem apt to cover what we are worried about. We could have a phrase about it being in the interests of society instead. The Minister is right to reconsider that wording.

Maria Eagle: I think that the wording the interests of justice will cover an awful lot of territory in a courtroom setting.
Let me close my general remarks on the stand part debate by making it clear that the new duties on the council to assess impact are not intended to mean that it has to take account of resources in drafting or revising its guidelines. This is about the council providing additional information that can be used by Government to plan for the demand on prison places, community orders and new justice services.

Jeremy Wright: The Minister has said twice now that there is nothing in the Bill to suggest that the sentencing council should take resources into account, but surely, clause 102(11)(d) must mean that when the council is setting sentencing guidelines for the judiciary to follow, unless it is in the interests of justice for it not to do so, it must consider the cost of different sentences. Surely, we cannot divorce that concept from the concept of having regard to resources.

Maria Eagle: There is nothing wrong with having an understanding of the cost of different sentences, but that does not imply that we should start setting guidelines that use only the cheaper sentences, which is obviously what the concern is. It is not the intention of the Government to try to fetter the work of the council in that way.

Alun Michael: I read that as saying that the sentencing council should look at cost and effectiveness and balance the two. That is not unreasonable at that stage of consideration. My problem is that the effectiveness of sentencing only comes in as a balancing factor with cost, rather than being the prime thing about which the council needs to be concerned.

Maria Eagle: Yes, and the point that my right hon. Friend makes brings me neatly to dealing withthe hon. Member for Cambridge is now going to throw me off.

David Howarth: I hope not. The way I read paragraph (d)in fact, the whole of clause 11is that the relative costs and effectiveness of different disposals are relevant. What the sentencing council is not taking into account is the budgetthe estimatefor the Ministry of Justice. It does not take into account the total. It just takes into account the relative effectiveness and costs of different kinds of sentence, which seems eminently reasonable.

Maria Eagle: I agree with the hon. Gentleman, after all of that. I now regret being unpleasant to him earlier.
I would like to move on to the points that my right hon. Friend the Member for Cardiff, South and Penarth made about his amendments. It seems some time ago that he moved them. Briefly, there are, in effect, two groups within the amendments, which, as he said, are designed to give greater prominence to the role of reducing reoffending in the creation of sentencing guidelines. The first set, which includes amendments 150 to 153, deals with the role of reducing reoffending in the creation of guidelines, and the second set, which includes amendments 158 and 160 to 162, aims to make experience of reducing reoffending a significant factor in the recruitment of members of the council. That is just to remind members of the Committee what he said.
First and foremost, I have a great deal of sympathy with what my right hon. Friend and the hon. Member for Cambridge have been saying about the impetus and motivation for the amendments, which is that some expertise in and understanding of what reduces reoffending is important when considering sentencing guidelines. I do not disagree with that at all. However, I am not convinced that the amendments are the best way of injecting that into our system. To answer the hon. Gentlemans point about the Governments approach to the amendments, I do not think that we are at all apart on the importance of that in the overall scheme of things, but I am a bit concerned about the impact that the amendments would have on the work of the council. I shall briefly explain why.
Amendment 150 would add a statutory purpose for the sentencing council to issue guidance to sentencers and would place a requirement on it to have particular regard to the effectiveness of sentences. It suggests that the primary role of the council should be to issue sentencing guidelines, but that is not its only purpose, of course. It has other purposes, and all its functions are important. I have some concern about the impact of trying to specify in statute that one is more important than another.
Amendment 151 would put the need to have regard to the effectiveness of reducing reoffending at the head of the list of factors that the council must have regard to when drawing up the guidelines, but there is no order of precedence in the factors at present. It must have regard to all of them. I think that it could create an imbalance and confusion if we start saying that it must think of one as more important than another. That is another worry that I have about the formulations used by my right hon. Friend. To say that there must be specific regard to one of the factors when other factors need to be considered might cause confusion and unduly downgrade some of the factors that have to be thought about. We do not want to do that.
That is not to say that we do not accept and understand my right hon. Friends point about the importance of having an understanding of what reduces reoffending injected into the system, as he and the hon. Member for Cambridge have both explained. Section 142 of the Criminal Justice Act 2003 requires a court that is dealing with an offender to have regard to the reform and rehabilitation of offenders, as well as to punishment, crime reduction, public protection and reparation. There is a general requirement on all sentencers to have regard to such matters, and we need to build on that, rather than skew the way in which the new sentencing council is to work.
Amendment 153 requires the council to have specific regard to the effectiveness of reducing reoffending and to indicate the evidence on which it relied in producing its guidance. However, if evidence is not available or if its relevance to sentencing for a particular offence under consideration is dubious, it could prevent the council from issuing guidelines, which we would not necessarily want to do.
Although we want the council to have regard to evidence-based information that is available and relevant in order to inform its guidelinesincluding comparative research materials from other jurisdictions, for examplewe do not see it as the councils role to commission its own research into the effectiveness of different sentencing outcomes, because that simply is not one of its functions. That is the responsibility of the Government, and it is not something that we were planning on transferring to the council under the Bill. The Government are committed to reducing reoffending, and their responsibility for building up a knowledge base on what works for reduced reoffending remains and will be implemented under our own research programmes.
The amendments on the composition of the council would probably introduce more confusion that we would like. I understand my right hon. Friends thinking behind them, in that he is trying to make sure that the personnel doing the job have sufficient knowledge of what works and what can be done to reduce reoffending. However, having independent members appointed by the Prime Minister or members approved by resolution of the House, and overturning what is currently a planned judicial majority, would give us cause for concern.
Twenty members might be a little unwieldy. The current Sentencing Guidelines Council has 12 members; the Sentencing Advisory Panel has 15 and the current plan under the Bill is that the new council should have a judicial majority, albeit small. My right hon. Friends amendment would make the majority non-judicial and would increase the number of members of the council. It is important to have the benefit of non-judicial members, but it is also important to have the confidence of the judiciary in the sentencing council. On that basis, we have decided that, albeit small, there should be a majority of sentencers on the council. That is the best way in which to retain the confidence of sentencers while enabling the proper reflection of the wider views of the public.

Alun Michael: Does my hon. Friend think it a good idea to have confidence in sentencers, as well as having the confidence of sentencers?

Maria Eagle: Certainly. One of the main purposes of asking the Gage working group to do its job was to see how we could increase the confidence of the public in sentencers, which is particularly important. I am not saying that I do not understand the fact that there might be different views about whether there should be a judicial majority or a non-judicial majority, but we have settled on a small judicial majority rather than a larger imbalance.
I accept that my right hon. Friend and other members of the Committee might have a slightly different view about whether that balance is correct. However, we do not want to suggest to sentencerswho do a difficult job, as a number of hon. Members have mentionedthat the sentencing council is intended to undermine their independence or impinge wrongly on individual decision-making powers in respect of individual sentences. We believe that a small judicial majority on the sentencing council sends the right signal while allowing plenty of opportunity for people with the kind of expertise that the amendments tabled by my right hon. Friend and supported by the hon. Member for Cambridge seek to introduce.
I am not in a position to accept my right hon. Friends amendments as currently drafted, because some of the disadvantages that would be introduced would outweigh the advantages. However, several members of the Committee certainly have sympathy with his aim, which is to introduce relevant expertise that goes beyond the law on sentencing and encompasses measures that work and employs a wider range of research about what reduces reoffending. We can do that by ensuring that those appointed have the right characteristics. I cannot accept the amendments as currently set out, but I hope that from what I have said, my right hon. Friend will understand the sympathy with which we view them. On that basis, I hope that he will agree to withdraw his amendment.
I want to mention amendments 244 and 257, as they were specifically referred to by the hon. and learned Member for Harborough. I think that we are to have a vote on amendment 257. Amendment 244 seeks to remove subsection (11)(d) from clause 102. That was referred to by the hon. Member for Rugby and Kenilworth. It seeks to address the concern that the council and the courts will be required to have regard to resources when drawing up guidelines on sentencing.
I want to make it clear that that does not represent any change in the current arrangementsit reflects existing practice. During the passage of the Criminal Justice Act 2003, which established the Sentencing Advisory Panel, and throughout its operation, no concerns have arisen. The council must have regard to the cost of different sentences and their relative effectiveness in preventing reoffending. Therefore, when drawing up guidelines and considering ranges and starting points, the council should, among other things, consider the cost effectiveness of different sentences in reducing reoffending. That does not mean that the guidelines should be influenced by the availability of resources, and I hope that members of the Committee will accept that.
Amendment 257 is meant to clarify clause 109
for the avoidance of doubt
that wonderful phrase that we all love in legislation. However, I suggest that it does not achieve its goal. Clause 109 places a duty on the council to assess the resource implications of its sentencing guidelines. The council will be required to publish an assessment of the impact of a new guideline, or a revision to a guideline on prison, probation and youth justice services. The assessment does not and should not influence the drafting of a guideline. At no stage in the process of creating or amending guidelines is the council required to take account of available resourcesit just needs to produce an impact assessment. It is not about having regard to resources; it is about transparency.
When the council produces a draft guideline, it will also produce an assessment of the impact. However, there is no requirement for it to reconsider a guideline simply because the assessment is considered by one party to be unaffordable. I want to make it clear that the council does not need to have regard to the availability of resources in drafting or amending guidelines.
I am concerned about the amendment tabled by the hon. Member for Cambridge, because it introduces the suggestion that the court can, or should, have regard to resources in sentencing in an individual case. It goes on to say that no sentence should be wholly determined by regard for resource, which suggests that some of it should be. The amendment seems to seek to introduce the very thing that the hon. Gentleman is trying to prevent.
The issues are technical ones about statutory interpretation, but I have made the Governments position clear in that respect. I have tried to deal with the points raised in all the stand part debates. I hope that my right hon. Friend the Member for Cardiff, South and Penarth will consent to withdraw his amendment.

Alun Michael: I wonder whether my hon. Friend the Minister will help me. In her remarks, she said that she has sympathy with what I am trying to do in clarifying and focusing the work of the sentencing council. However, she went on to say that she could not accept the amendments as drafted. I take full responsibility for the drafting, and accept that my amendments are capable of improvement. Is the Minister sufficiently sympathetic to what I argued at the beginning of the debate to offer the opportunity to discuss those purposes and perhaps to consider whether the Government should come forward with amendments on Report to further improve the Bill?

Maria Eagle: I am happy to offer my right hon. Friend a discussion. On the basis of how that discussion goes, I might be happy to offer him the second thing that he asked for. However, I am not committing myself to that at this stage.

Alun Michael: The Minister, in refusing to commit herself at this stage, shows great wisdom, which I respect. Briefly, my concern about her response is that Ministers are in some difficulties, because having offered a judicial majority, taking it back might give them all sorts of problems with the judges. I would encourage them to be brave and not to feel intimidated. If numbers are of such great relevance, reducing the numbers of judges in order to achieve balance might be the way forward.
I accept what the Minister said about the sentencing council having other purposes. Yes, but the problem is that the whole criminal justice system is confused about the councils purpose and is often unclear about what it is for. I do not think that adding to that confusion is possible, nor that my amendments would do that. Only the youth justice system was provided with clarity of purpose in the 1998 Act, which I look back on with some pride, and that has been the part of the criminal justice system that over the past 10 years has delivered most effectively.
As the Minister has said, I do not want to inject into the system a focus on what works; I want what worksI want the effectiveness of sentencing in reducing reoffending to be right at the heart. That will not skew the council, unless the council is in danger of regarding reducing reoffending as an irrelevant sideshow, which it is not.
On the membership, I am grateful to the Minister for acknowledging that there is some value in getting people with knowledge and experience of what works, but I also want to see people with analytic capacity, who can question the system and demand evidence. As she has said, the Government are committed to reducing reoffending and, for that reason, they need to require their agencies and instruments to focus on reducing reoffending.
Having heard that the Minister is sympathetic to what I am trying to do, I accept that there is difficulty for the Government in accepting amendments as drafted. If our discussions are as exciting and positive as she has suggested, the Government might possibly move, otherwise I shall bring back further amendments on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 12, Noes 5.

Question accordingly agreed to.

Clause 100 ordered to stand part of the Bill.

Schedule 13

The Sentencing Council for England and Wales

Edward Garnier: I will not move amendment 413, because it has been adequately covered in discussion.

Maria Eagle: I beg to move amendment 292, in schedule 13, page 150, line 2, leave out sub-paragraph (1).
Government amendment 292 removes the delegated power conferred on the Lord Chancellor to make provision as to the proceedings of the sentencing council contained in paragraph 7(1) of schedule 13.
A similar power is contained in section 168 of the Criminal Justice Act 2003 in regard to the Sentencing Guidelines Council. That provision has never been used and, on reflection, and bearing in mind it is not unusual for other advisory bodies to regulate their own proceedings, the Government do not believe that it is necessary to reproduce the power for the Lord Chancellor. The Council will therefore be able to regulate its own proceedings.

Amendment 292 agreed to.

Schedule 13, as amended, agreed to.

Clause 101 ordered to stand part of the Bill.

Clause 102

Sentencing guidelines

Edward Garnier: I beg to move amendment 243, in clause 102, page 61, line 6, leave out subsection (4).
The amendment relates to the deletion of
(4) The Council may prepare sentencing guidelines about any other matter.
What does that mean?

Maria Eagle: The provision allows the council to prepare sentencing guidelines and only that. That is my understanding. Only the council will have the power to do that. It allows the council to do the main part of its work. Whether on specific offences or on general sentencing issues, the effect of the amendment would be to reduce the council to producing only two guidelines. That would be the effect of the hon. and learned Gentlemans amendment, which would remove the essential core function of the council. The council would be unable to produce guidelines other than those under subsection (3)(a)(b)that is, guidelines on early guilty plea reductions and the totality principleif his amendment were accepted.

Edward Garnier: I am not sure that I follow what the hon. Lady has said. The core functions of the council are found in subsections (1), (2) and (3). The any other matter provision in subsection (4) could mean anything. However, I have provoked some interest in the issue, which clearly needs further thought. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Maria Eagle: I beg to move amendment 293, in clause 102, page 61, line 11, at end insert
(ba) the Justice Select Committee of the House of Commons (or, if there ceases to be a committee of that name, such committee of the House of Commons as the Lord Chancellor directs);.

Frank Cook: With this it will be convenient to discuss Government amendments 294 to 296.

Maria Eagle: The amendments place a duty on the sentencing council to consult the Select Committee on Justice when drafting sentencing and allocation guidelines. Under current arrangements, both the Sentencing Advisory Panel and the Sentencing Guidelines Council routinely consult the Justice Committee on proposals, and the Committee tends to be consulted at the same time as Ministers and other interested parties. The Committee has provided comments on guidelines, and it has called witnesses to gather evidence relating to the contents of draft guidelines.
As my right hon. Friend the Lord Chancellor said on Second Reading, the Government are keen for the Select Committee to continue to have that important role in scrutinising guidelines. To make that clear, these amendments put in the Bill a duty on the sentencing council to consult the Select Committee, which we think better reflects the Select Committees importance in scrutinising the guidelines and, given the expanded duties of the council, the need to ensure that scrutiny applies to the additional functions.

George Howarth: I congratulate my hon. Friend on tabling the amendments. I requested them on Second Reading, and I know that others also requested them. They provide the means for the new body to be subject to parliamentary scrutiny, which is surely welcome.

Maria Eagle: I agree with my right hon. Friend.

Amendment 293 agreed to.

Frank Cook: We come now to amendment 244.

Edward Garnier: I will not move amendment 244, but at the appropriate time I will seek to move amendment 257 formally.

Clause 102, as amended, ordered to stand part of the Bill.

Clause 103 ordered to stand part of the Bill.

Clause 104

Allocation guidelines

Edward Garnier: I beg to move amendment 245, in clause 104, page 63, line 12, leave out paragraph (b).

Frank Cook: With this it will be convenient to discuss amendment 246, in clause 104, page 63, line 13, leave out paragraph (c).

Edward Garnier: The amendments would delete subsection (4)(b) and (c). I simply want to know whom the Government intend the sentencing council should consult as directed by the Lord Chancellor or
as the Council considers appropriate.
The provision is vague, and we need a bit more information about who should be consulted.

Maria Eagle: The effect of the amendments on allocation guidelines would be that the sentencing council would be obliged under the clause to consult only the Lord Chancellor. The Bill, like the provisions in the Criminal Justice Act 2003, requires the sentencing council to consult
the Lord Chancellor...such persons as the Lord Chancellor may direct...such persons as the Council considers appropriate.
The sentencing council may choose to consult any other persons on the draft allocation guidelines. The answer to the hon. and learned Gentlemans question is that anyone who might have an interest in what the guidelines say about where cases should be allocated in the court could be consulted. It will be for the sentencing council and/or the Lord Chancellor to come up with a list. There is no intention, as far as I am aware, to depart from existing practice, which is to consult magistrates clerks, and those who have a view about and expertise in the allocation of cases. That is our intention, but under the amendment only the Lord Chancellor would be consulted.

Edward Garnier: Clearly, that was not my intention; this is a probing amendment. It is just that the clause is so vague and unclear. I appreciate what the Minister has said and that the provision does not include Uncle Tom Cobleigh. Nevertheless, I think that the Government need to provide a bit more detail on occasions. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 294, in clause 104, page 63, line 12, at end insert
(ba) the Justice Select Committee of the House of Commons (or, if there ceases to be a committee of that name, such committee of the House of Commons as the Lord Chancellor directs);.(Maria Eagle.)

Clause 104, as amended, ordered to stand part of the Bill.

Clause 105

Preparation or revision of guidelines in urgent cases

Amendments made: 295, in clause 105, page 63, line 38, leave out or and insert to.
Amendment 296, in clause 105, page 63, line 41, leave out or and insert to.(Maria Eagle.)

Clause 105, as amended, ordered to stand part of the Bill.

Clause 106

Proposals by Lord Chancellor or Court of Appeal

Amendment made: 297, in clause 106, page 64, line 24, leave out from so to end of line 25.(Maria Eagle.)

Clause 106, as amended, ordered to stand part of the Bill.

Clause 107

Sentencing guidelines: duty of court

Amendment proposed: 248, in clause 107, page 64, line 42, leave out follow and insert have regard to.(Mr. Garnier.)

Question put,That the amendment be made.

The Committee divided: Ayes 5, Noes 12.

Question accordingly negatived.

Clause 107 ordered to stand part of the Bill.

Clause 108 ordered to stand part of the Bill.

Clause 109

Resource implications of guidelines

Amendment proposed: 257, in clause 109, page 67, line 15, at end add
(6) Whilst the courts may have regard to the availability of correctional resources, for the avoidance of doubt the courts must not pass a sentence that is wholly determined by resource assessments which are expressly intended for the guidance of the Secretary of State in planning for and providing such custodial or community sentences as he advises Parliament, and it considers, necessary in the light of such assessments..(Mr. Garnier.)

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 10.

Question accordingly negatived.

Clause 109 ordered to stand part of the Bill.

Clause 110

Monitoring

Maria Eagle: I beg to move amendment 298, in clause 110, page 67, leave out line 23 and insert
(a) the frequency with which, and extent to which, courts depart from sentencing guidelines;.
The amendment changes the wording of the clause to clarify the duties of the sentencing council and the Lord Chancellor. The amendment relates to the councils duty to monitor the operation and the effect of sentencing guidelines. As currently drafted, the clause refers to monitoring
the level of compliance with the guidelines.
On reflection, the Government realise that the phrase compliance with the guidelines could be misconstrued to mean whether a sentencer has, in a legal sense, complied with the guidelines. That legal consideration is a function of the Court of Appeal and not the council. That is not the intended meaning of this provision, which is meant to allow the council to record statistics on when and to what extent sentencers followed or departed from guidelines, not to monitor whether those decisions were legally correct. Government amendment 298 puts that beyond doubt.

Amendment 298 agreed to.

Clause 110, as amended, ordered to stand part of the Bill.

Clauses 111 to 114 ordered to stand part of the Bill.

Clause 115

Assistance by the Lord Chancellor

Maria Eagle: I beg to move amendment 299, in clause 115, page 69, line 38, leave out from may to end of line 39 and insert
provide the Council with such assistance as it requests in connection with the performance of its functions..
This amendment clarifies the power of the Lord Chancellor to assist the council. The power is designed to allow the Lord Chancellor to provide assistance to the council if required, but, in doing so, we would not wish to use words that might suggest that the Lord Chancellor has a power to interfere in the running of the council. To put this matter beyond doubt, Government amendment 299 makes it clear that the Lord Chancellor can assist the council, when it requests his assistance to meet its statutory functions.

Amendment 299 agreed to.

Clause 115, as amended, ordered to stand part of the Bill.

Clauses 116 to 118 ordered to stand part of the Bill.

Clause 119 ordered to stand part of the Bill.

Schedule 14

Extension of disqualification for driving

Edward Garnier: I beg to move amendment 455, in schedule 14, page 151, line 36, at end insert
(4A) But the court must not, save where the interests of justice indicate otherwise, sentence a person to be disqualified for an extension period unless it has considered the effect that any such disqualification will, or is likely to, have in all the circumstances of the case on that persons prospects of rehabilitation, employment, finding accommodation and not re-offending after the completion of the custodial part of the sentence..

Frank Cook: With this it will be convenient to discuss the following: amendment 456, in schedule 14, page 153, line 4, at end insert
(4A) But the court must not, save where the interests of justice indicate otherwise, sentence a person to be disqualified for an extension period unless it has considered the effect that any such disqualification will, or is likely to, have in all the circumstances of the case on that persons prospects of rehabilitation, employment, finding accommodation and not re-offending after the completion of the custodial part of the sentence..
Amendment 457, in schedule 14, page 154, line 16, at end insert
(4A) But the court must not, save where the interests of justice indicate otherwise, sentence a person to be disqualified for an extension period unless it has considered the effect that any such disqualification will, or is likely to, have in all the circumstances of the case on that persons prospects of rehabilitation, employment, finding accommodation and not re-offending after the completion of the custodial part of the sentence..
Amendment 458, in schedule 14, page 156, line 3, at end insert
(4A) But the court must not, save where the interests of justice indicate otherwise, sentence a person to be disqualified for an extension period unless it has considered the effect that any such disqualification will, or is likely to, have in all the circumstances of the case on that persons prospects of rehabilitation, employment, finding accommodation and not re-offending after the completion of the custodial part of the sentence..
Amendment 459, in schedule 14, page 157, line 44, at end insert
(4A) But the court must not, save where the interests of justice indicate otherwise, sentence a person to be disqualified for an extension period unless it has considered the effect that any such disqualification will, or is likely to, have in all the circumstances of the case on that persons prospects of rehabilitation, employment, finding accommodation and not re-offending after the completion of the custodial part of the sentence..
Amendment 460, in schedule 14, page 159, line 36, at end insert
(4A) But the court must not, save where the interests of justice indicate otherwise, sentence a person to be disqualified for an extension period unless it has considered the effect that any such disqualification will, or is likely to, have in all the circumstances of the case on that persons prospects of rehabilitation, employment, finding accommodation and not re-offending after the completion of the custodial part of the sentence..

Edward Garnier: The amendments are all identical, except that they deal with the different jurisdictions of England and Wales, Scotland and Northern Ireland. Essentially, they have the same wording. We are considering the power under clause 119 for courts to provide for the extension of disqualification from holding or retaining a driving licence in certain circumstances. When a person is sentenced to a term of imprisonment, from time to time, if not invariably, by virtue of the nature of their offence under sentencing powers available to the court, they will be disqualified from driving for period. The period coincides with, or is shorter than, the period of imprisonment, however, so many members of the public thinkand the Government appear to agreethat that is no punishment at all. The driving part of the offence, while it may be dealt with by a custodial sentence, is not effectively dealt with through the loss of the driving licence.
Although I understand the logic behind the argument, in my role as shadow Justice Minister I am increasingly concerned that we are getting rehabilitation wrong, and we are getting most wrong the measures on enabling those who leave prison to find employment. One of the many things that reduce re-offending is the prospect of holding down a job. In addition to that, accommodation, coming off and staying off drugs and a stable relationship must be considered because they represent a bridge between inside and outside. Many people leaving prison fall off it and back into crime.
We must be very careful before agreeing to the powers in the schedule because we may be cutting off our nose to spite our face. In earlier discussions, we talked about the effectiveness of sentencing and the need for the Sentencing Guidelines Council to take that into account. Here we have a classic example of our rushing ahead but achieving nothing. I have visited a number of prisons. If one goes to open prisons, or to HMP Latchmere House in Richmond upon Thames, one will find that prisoners coming to the end of quite long custodial sentences leave prison daily to carry out work. Many of those jobs are either driving jobs or require the prisoners to get to the place of work using their own transport. Prisoners at several open prisons that I have visited use their own cars to travel from the prison to their place of workin shops, offices, charities and so on.
Many of the people I met at HMP Latchmere House in Richmond were going off to do labouring jobs for British Gas or other public utilities, including Transport for London. Sometimes they go by public transport because Richmond is accessible by public transport, but it is not always possible for the offender to get to work on time and get back before the curfew at the end of the working day. That is clear enough while prisoners are in open prisons or in halfway houses, but it is less clear, although equally true, in respect of those who have left prison having completed their sentences and need to maintain a connection with employment.
We tabled amendment 455 and the others in the group to ensure that we do not prevent people who need to rehabilitate and to remain in touch with work from doing so. I hope that the way in which we have drafted the amendment allows the court to take account of the interests of justice as well as the needs of the individual defendant to go to work.

Maria Eagle: The Bill places a duty on the courts to impose an extension period to any driving disqualification imposed at the same time as a custodial sentence. That is to ensure that time spent in prison does not erode the impact of the driving ban. The provisions will ensure that offenders are treated consistently and fairly and that they will face the full impact of their driving ban.
The amendments would replace the duty on the courts to impose an extended period where a custodial sentence is also imposed at the same time and leave the matter to the discretion of the courts. I hope to reassure the hon. and learned Member for Harborough, who will know that the courts already take some account of time to be served in custody when determining the length of a driving ban. The proposal in the Bill will require the courts to act consistently in that regard, but when the court is determining the discretionary period of the ban that is appropriate to the offence committed it is guided by Court of Appeal guidance. As the hon. and learned Gentleman will know, it is well established sentencing practice that a long period of disqualification may be counter-productive and contrary to public interest.
There will be cases where long driving bans are justified by the circumstances of a particular offence and if the offenders record shows an irresponsible attitude to the use of vehicles. In such circumstances, the courts can and do impose long bans. But the Court of Appeal has discouraged disproportionately long periods of disqualification for the reasons that the hon. and learned Gentleman mentioned when moving his amendment. For example, the prospect of losing a licence for a long time or of never being able to drive again lawfully may only increase the temptation for offenders to ignore the ban and drive illegally and may present just the kind of barriers that he mentioned in respect of rehabilitation, particularly if they affect job prospects.
I understand the points that the hon. and learned Gentleman makes, but the courts already take into account the factors identified in the amendments when determining the appropriate length of the driving disqualification. We are seeking to ensure that that disqualification period, when set by the courts, is served. On that basis, the hon. and learned Gentlemans amendment is unnecessary and I ask him to withdraw it.

Edward Garnier: I wish that I had the Ministers confidence. It is that early period, post-release, that is so difficult. That is when most prisoners who leave prison and commit suicide do so and when most of them turn to crimeprobably in that first fortnight. The first 24 hours is important and the first fortnight is almost as important. It takes some time for people who have been inside for quite some time to get used to being on the outside again. We are not very good at helping offenders bridge that gap, which I have described.
I am not going to press the amendment to a Division. I will ask the Committees permission to withdraw amendment 455, but the issue is not just some debating point; it is a matter of huge and pressing importance. Anyone who has studied our prisons or participated in the criminal justice system as an advocate or as a judge will realise that the matter must be taken account of. As I said, although I will not press the amendment to a Division, I would not want anyone to brush this aside as an early-evening debating point because it is a matter of huge importance. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jennifer Willott: I beg to move amendment 492, in schedule 14, page 153, line 37, at end insert
(4) After section 35B (as inserted by sub-paragraph (3)) insert
35C Extension of disqualification of person already disqualified
(1) This section applies where a person
(a) is convicted in England and Wales of an offence for which the court orders the person to be disqualified under section 34 or 35, and
(b) is still subject to a period of disqualification which was previously imposed and is still being served.
(2) The order under section 34 or 35 may provide for the person to be disqualified for the appropriate extension period, in addition to the discretionary disqualification period.
(3) The discretionary disqualification period is the period for which, in the absence of this section, the court would have disqualified the person under section 34 or 35.
(4) The appropriate extension period is the period of disqualification previously ordered under section 34 or 35, and still being served, less any period already served...
The amendment concerns a different point from that raised by the hon. and learned Member for Harborough. I will start with the story of a recent case that came up in a magistrates court in south Wales. A gentleman had been disqualified for dangerous driving and had been given the maximum disqualification period, which was 12 months. He was back in the magistrates court a month later in front of the same bench when he was charged with driving while disqualified. As I understand it, the maximum period for which he could then be disqualified as a result of driving while disqualified was a further three months. However, the three months had to run concurrently with the one year driving ban.
In the amendment, I am proposing to make it possible for magistrates who have such a case to be able to add an extension period, so that a further period of disqualification would start at the end of the previous period of disqualification. The amendment would enable magistrates to do that, but it would not mean that they have to, because there are circumstances in which they clearly would not wish to do so. The gentleman I mentioned in the example has no incentive for the first nine months of his driving ban to abide by that ban because whatever disqualification period he gets on top of that is up to a maximum of three months and runs concurrently.
That point was raised with me by a magistrate who was concerned about the case and the fact that there was nothing that they were able to do despite the strength of feeling on the bench. The amendment would give discretion to the magistrates and would mean that they are able to add an extension period when they are making a decision in such cases. The amendment would mean that the same common sense that applies to the original proposals that the Minister has laid out in relation to adding on to a period of imprisonment would apply to a period of disqualification.

Maria Eagle: Subject to the points that I made in our previous short debate about the Court of Appeal guidelines and the interests of justice in not imposing too extensive a ban going far into the future, I have some sympathy for the points that the hon. Lady is making. However, I do not want her to press her amendment to a Division for a couple of reasons.
Consideration is currently being given to whether further provision on driving bans should be made for repeat offenders, who I think are the people about whom she is interested. If further provision should be made, what is the best way forward? We still have legal and administrative issues to deal with in respect of how that kind of extra provision might work, and there are potentially difficult issues that we must consider.
We are currently looking at some transitional provisions, and some Road Safety Act 2006 provisions are due to come into force in the not-too-distant future, which will permit reductions in disqualification periods for offenders who, for example, attend specified driving courses. We must ensure that we dove-tail any arrangements that we make here with those provisions because we do not want to end up with a mess. On that basis, I hope that the hon. Lady will understand when I say that, while I have some sympathy, I am not yet in a position either to table Government amendments or to accept the one that she has tabled. However, we realise that it is a point, and we are considering it further. Once the issues have been solved, we hope to introduce a provision dealing with the point that she has made. On that basis, I hope that she will withdraw her amendment.

Jennifer Willott: I look forward to seeing the proposalsit is clearly an issue that needs to be tackled. With the Ministers assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 14 agreed to.

Clause 120

Dangerous offenders: terrorism offences (England and Wales)

Question proposed, That the clause stand part of the Bill.

Jennifer Willott: I have a brief question about the imprisonment for public protection offences that clauses 120 and 121 relate to. The key element is that an offender must prove to the authorities that he or she is fit for release; that is done through special classes and intensive supervision. Given the categories of offences that are included in those two clauses, what sort of classes would be seen to be appropriate, and what would such offenders be expected to undertake in order to prove to the authorities that they were fit for release? How will that dovetail with ensuring that somebody is no longer a threat to the public? How will the process be seen to work?

Maria Eagle: The hon. Lady is quite right that clause 120 inserts into schedule 15 of the Criminal Justice Act 2003, into a list of offences that are suitable for indeterminate public protection sentences, some offences that relate to a wider range of terrorist-related offences. In doing so, we are amending part 1 of the schedule, which specifies violent offences.
All the particular terrorist-related offences in the clause are appropriate for inclusion in the schedule, because they demonstrate a sufficiently direct risk of harm, in that they relate to the planning and/or commission of violent crimes, and carry maximum custodial sentences of 10 years or more. In that sense, it has perhaps been a bit anomalous that they have not been there already. Public protection is, of course, paramount, and it is important to take the opportunity to update the schedule to keep pace with changes in public risk. Some of the offences were introduced only in the Terrorism Act 2006, which is why they are not already in the schedule.
The hon. Lady is right, however, to say that as part of the regime IPP prisoners are expected to show that their dangerousness has reduced, and there will be a suite of arrangements to assist them in indicating that. Clearly, it is important that, particularly, motivated violent offenders have suitable courses. I am not in a position today to give her a list of precisely what they will be in respect of each of the offences, but it is certainly the case that the types of offences in the clause are completely within the area of the offences that Parliament has said are suitable for indeterminate sentences for public protection. Certainly, before we start operating them as such, and before such sentences start being given, arrangements must be made for courses that will enable the individuals concerned to show that they are fit to be released. We would not expect such sentences to be imposed without there being a regime of that kind, through which people can seek to be released after the expiry of their tariff. Indeed, we have come across one or two legal problems in respect of that before. Therefore, I can assure the hon. Lady that we would not use such sentences, or have them available for use by the court, without there being arrangements to deal with the points that she has made.
It would seem anomalous not to have violent offences of such a nature included in the regime for indeterminate sentences for public protection. We think that they are suitable, and we are taking the opportunity to update the list.

Question put and agreed to.

Clause 120 accordingly ordered to stand part of the Bill.

Clause 121 ordered to stand part of the Bill.

Clause 122

Commissioner for Victims and Witnesses

Alun Michael: I beg to move amendment 156, in clause 122, page 73, leave out line 35.

Frank Cook: With this it will be convenient to discuss the following: amendment 163, in clause 122, page 73, leave out line 36.
Amendment 157, in clause 122, page 74, line 3, at end insert
who shall lay a copy of the report before Parliament..
New clause 18Commissioner for Victims and Witnesses: further provisions
After section 50 of the Domestic Violence, Crime and Victims Act 2004 insert
50A Complaints
(1) The Commissioner for Victims and Witnesses may receive complaints from victims and witnesses about the workings of the criminal justice system and shall either indicate the appropriate body to deal with the complaint or coordinate consideration of two or more bodies where there is shared responsibility or a lack of clarity about who is responsible for the issues about which the complaint is made.
(2) The Commissioner shall be supplied with a copy of the response of any such body or bodies and may request that the findings be re-considered.
(3) The Lord Chancellor may issue guidance to the relevant bodies in the Criminal Justice System setting out how they should co-operate with the Commission and with each other in order to provide an appropriate response to victims and witnesses..

Alun Michael: I shall focus primarily on new clause 18, which contains the essence of my proposals, which would assist Ministers in making a reality of the concept of the commissioner for victims and witnesses in a way that would command widespread support.
I have been involved in witness issues for many years. Indeed, I was involved in setting up a very early victim support group in Cardiff, along with Jonathan Evans, who went on to become a Conservative MP some years later, and is now a Member of the European Parliament, but who was then responsible for defending people in Cardiff within the court system. So I have followed these issues for many years.
During my time as the deputy Home Secretary, and during my many years in opposition, I worked closely with Victim Support, which I found to be a constructive organisation concerned with practical issues that would be of real benefit to victims, rather than with representative or headline-catching issues. I was therefore very concerned to read its evidence to the Committee about the amendments to the commissioner idea. It had originally supported the concept of having such a commissioner when the idea was proposed five years ago, but it said in its comments on the Bill:
Since then, the Victims Code Of Practice has brought about many of the basic improvements in the system that would have fallen to the Commissioner, so the rationale for the role is now much weaker. Further improvements could be better delivered through proper monitoring of the Code and regular increases in its service standards.
It went on to say:
In addition, the real voice for victims lies with organisations such as Victim Support and others in the voluntary sector who help victims of crime. The Commissioner will duplicate that role and waste valuable resources.
Should that be the case, there would be some sense in the conclusion that Victim Support reached. It stated:
We are therefore calling on the Government to set out a clear argument for why it thinks the Commissioner is still needed after five years have passed and, unless it is able to do so, to repeal the Commissioner provisions and redirect its funding towards front line services instead.
It has clearly given the Government the opportunity to say, No, there is a focused piece of work that the commissioner could undertake.
Evidence that has been heard by this Committee and by the Select Committee on Justice has raised the concerns of victims and others about making complaints about and getting redress within the criminal justice system. We heard that there are 10 different agencies and organisations. The list that shows how complaints are dealt with, in relation to different aspects of the criminal justice system, shows that the methods are varied and inconsistent. They might be suitable for the work of the relevant agencies, but they certainly do not hang together if anyone has a complaint about what the criminal justice system as a whole has done. Hon. Members might share my experience that when one is trying to get redress for a constituent, when something has gone wrong, it is often difficult to know whether it went wrong because of the police, the Crown Prosecution Service or the courts administration. Until one can answer that, one cannot get into those separate silos of complaint.
We could take away the burden currently on the victim, if they have a complaint, of knowing where to address it and of having to understand the criminal justice system in order to make a complaint. I therefore suggest that the commissioner should be given a clear but very simple and inexpensive responsibility, which is to be the point of co-ordination. Victims and witnesses would make their complaint to the commissioner, who would then ensure that the right silo of complaint examination dealt with it, or, if the issue was clearly not for one agency rather than another, that agencies co-ordinated their activities to ensure that the focus was on giving the right answer to the victim and dealing with the complaint, rather than playing games across the silos, going right down the practical depths of individual organisations.

Tim Boswell: The right hon. Gentleman is describing a one-stop shop, is he not?

Alun Michael: It is a one-stop shop, but the shop does not have to have all the goods for sale within it. The point is not to take away the responsibility for existing agencies and existing complaints systems to deal with complaints. The new clause would take away the burden on the victim to understand the criminal justice system to be able to make a complaint effectively.
I suspect that the new clause would also be a great help to Members of Parliament, who currently have to try to understand the criminal justice system. I believe that even those of us who have been involved in it for many years would agree that that is not the simplest thing to do.
My proposal in new clause 18 is that we insert a clause to allow the commissioner to
receive complaints from victims and witnesses about the workings of the criminal justice system.
The responsibility then would be either to
indicate the appropriate body to deal with the complaint or co-ordinate consideration of two or more bodies where there is shared responsibility or a lack of clarity about who is responsible for the issues about which the complaint is made.
There are two other elements of the new clause. One is that the commissioner
shall be supplied with a copy of the response of any such body or bodies and may request that the findings be re-considered.
In other words, the activity of the cost remains with those organisations, but the commissioner is able to act in the interests of the victims.
Finally, the Lord Chancellor
may issue guidance to the relevant bodies in the Criminal Justice System setting out how they should co-operate with the Commission and with each other in order to provide an appropriate response to victims and witnesses.
I am certain that any Lord Chancellor would see that as an opportunity to tidy up some of the operations of the system.
Giving the commissioner this role in respect of complaints would enable him to change the culture of the criminal justice system without increasing costs. The costs to the commission would be minimal, and the benefits would be standard-setting rather than having to intervene directly. It would be a major and positive development.

David Kidney: For clarification, a couple of constituents recently told me that false allegations made against them were investigated by the criminal justice system and disposed of without any prosecution. There is no stain on their character, but the investigation has been disclosed to employers in enhanced Criminal Records Bureau checks. Would the system that my right hon. Friend describes extend to those people as victims?

Alun Michael: Very simply, if as victims they were complaining about how they had been dealt with in the system, they would currently be able to use one of 10 different complaint systems. My proposal would enable the commissioner to help them to address their complaint to the right organisation, or to ensure that there was co-operation across boundaries. It might not deal with some of the more complex areas of false accusationsome of them would fall outwith the nature of the complaint systembut it would assist somebody who had a complaint such as that against the system.
I shall now explain the three amendments, including the one that I moved, amendment 156, which would omit line 35. I do not understand why the Government want to stop the commissioner being able in law to carry out research. Whether the commissioner is able to carry out research or not would depend on what resources are provided by the Lord Chancellor, so the Government would control any expansion in research activity. It seems unwise to remove from the Bill something that might never be used but that might need to be used in the future.
Amendment 163 is about the Governments attempt to omit subsection (3)(b) which is about the laying of reports before Parliament. The Government have proposed a new system of reporting in which reports would be made to the Secretary of State for Justice, the Attorney-General and the Home Secretary. I am perfectly happy for them to receive reports, but it seems rather odd that a report should not be laid before Parliament. In that regard, I have made a further suggestion, which is that the Government would be supported in deleting the existing provision if the three Ministers who receive the report have the responsibility of laying it before Parliament. It seems that the report of the commissioner should end up before Parliament, but the way in which the clause is worded suggests that that would not be the case.
These are fairly simple points aimed at assisting the Government in addressing the concerns raised by Victim Support and enabling them with very little pain or cost to do something really useful. I hope, therefore, that the proposals in new clause 18 will be accepted by my hon. Friend.

Edward Garnier: The principles behind new clause 18 are something that we broadly share. The right hon. Gentleman can correct me if I am wrong, but I suspect that they are drawn from the Victim Support manifesto from earlier in this decade.

Alun Michael: They arise from looking at the concerns that have been expressed by Victim Support, which I quoted, and from the evidence about how difficult it is to find ones way through the complaints system. It is as simple as that.

Edward Garnier: It is a coincidental invention, but none the worse for all that. In the Victim Support manifesto 2001, it stated that the role of the victims commissioner should be to ensure that agencies implement changes to their policies or procedures where these have proved not to have taken full account of the interests and needs of victims; advise victims on how to seek redress, giving assistance in important test cases and initiating proceedings in the Commissioners own name; deal with individual complaints where resolution at an earlier stage has not been successful; scrutinise proposed legislation which will affect victims of crime; conduct inquiries into issues of public concern that would not be resolved through the outcome of individual cases; and seek to reduce secondary victimisation. Those are all reasonable aims to try to achieve.
The one thing that puzzles me about the Governments approach is how slow they have been. Six years agoprobably longerthey heralded the establishment of the victims commissioner. In 2002, the post was proposed in their document Justice for All. It was legislated for in the Domestic Violence, Crime and Victims Act 2004. The post was advertised, but they never appointed anyone to fill the job. Then the Prime Minister announced it yet again in his speech to the Labour party conference last year. Now under this clause, we get provision to pay for his salary and pension and allowances and gratuity. The whole process has taken far too long.
The Government have appointed an interim victims champion, and at last we are seeing the Government moving toward doing something practical about making it possible for the victims commissioner to carry out his functions. None the less, it has taken seven years, and the Government must explain why they have taken so long to achieve what must not be a party political or a controversial matter, but something that so many of us think is appropriate.

Jennifer Willott: I am glad that the right hon. Member for Cardiff, South and Penarth has tabled these amendments. I share his views about the value of Victim Support and the job that it does. I declare an interest as a former employee of Victim Support in the area in which the right hon. Gentleman worked. The right hon. Gentleman makes a valuable point.
I share the concerns of the hon. and learned Member for Harborough about the delay in implementing the victims commissioner. Given that it has been such a long time since the measure was originally proposed, a bit of a stocktake as to how the situation has changed and what powers are needed seems sensible. With the implementation of the victims code of practice, things have improved. There is a feeling from organisations such as Victim Support that things have got better in a number of ways, so it makes sense to re-evaluate the powers of the victims commissioner. However, the concern about the clause, which would be put right by the amendments tabled by the right hon. Gentleman, is that the Bill as drafted waters down massively the powers of the victims commissioner without giving it any real role. The role is not one that has been put in place before, so to take away pretty much all its teeth before it has had a chance seems completely daft.
For me, the key issues are around transparency and reporting to Parliament, which I find difficult to understandI shall be grateful if the Minister will clarify why that has been removed and why the commissioner is only reporting to Ministers. The role of Parliament in such issues is important. It is also important that the commissioner has the ability to do something. The proposals in new clause 18 are a sensible way forward, but I have real concerns about the powers being removed by the clause. I fully support the amendments tabled by the right hon. Gentleman to reinstate some of the powers and responsibilities of the commissioner, so that when we finally see a full-blown victims commissioner, they are in a position to do something. It is a crucial role and removing the ability of the commissioner to do anything is just kicking their legs out from underneath them before they even start, so I wholeheartedly support the right hon. Gentlemans amendments.

Maria Eagle: I shall try to deal with the points raised. We are making changes to the legal framework, which as the hon. and learned Member for Harborough said was in the Domestic Violence, Crime and Victims Act 2004, for a number of reasons. One is that, as he said, we were unable to get the right level of applications to appoint. As the hon. Member for Cardiff, Central was saying, things have changed and improved a lot in the interim. While not having been able to appoint at the time of the first advert, for the post as originally envisaged, we carried on and now fund Victim Support with a core grant of £30 million a year, plus an additional £12.5 million since 2007-08, to provide a national network of support and engagement with victims and witnesses. So, Victim Support is now a national organisation, with a central policy function. We do not now believe that there is good value in establishing a separate office for the commissioner with roles that are effectively carried out by Victim Support as a national organisation.
We have, as the hon. Lady mentioned, introduced the code of practice for victims of crime, which sets out standards of service that victims can accept. We have developed witness care units, to provide information and support for witnesses to attend court and give their best evidence. I have already mentioned the development in Victim Support, which included a lot of financial support from the Government, and the 42 local criminal justice boards, which bring together criminal justice agencies at a local level to work in partnership, with a primary responsibility of supporting victims and witnesses. There is also much more availability of special measures to help vulnerable and intimidated witnesses. In fact, the landscape has been transformed and it is for that reason that we want to change the functions that the victims commissioner should undertake, to take account of that changed circumstance. That is why we are bringing forward our suggested changes in the Bill. I hope that the Committee will accept that.
We do not believe that there is a necessity for an elaborate statutory support structure for the commissioner. It would distract the focus of the commissioners work, which should primarily be about understanding the needs of victims and witnesses and promoting their interests. The commissioner can effectively be supported by a core office of civil servants or other seconded professionals from criminal justice agencies and take advice, and work with other important experts such as Victim Support. That is why we no longer consider it appropriate for the commissioner to have the power to undertake research.
I assure my right hon. Friend the Member for Cardiff, South and Penarth that we remain fully committed to research. For example, last year the Department published research papers exploring victims and witnesses experiences of the criminal justice system and an evaluation of the victims advocate scheme. We want such valuable research to continue. We want the commissioner to have access to it, but we do not believe that it is necessary for him or her to have their own research capability. In planning our own research programmes, we would expect to enter into discussions with the commissioner about priorities and to take his or her views into account.
Amendments 157 and 163 relate to reports by the commissioner. Amendment 163 would retain the duty on the Justice Secretary to lay before Parliament a copy of any ad hoc report issued by the commissioner, while amendment 157 would require the Justice Secretary to lay the commissioners annual report before Parliament. I completely understand the reasons for the amendments, but we are not seeking to downgrade the importance of the reports issued by the commissioner. There is great value in laying reports by statutory bodies and office holders before Parliament.
In future, the commissioner will chair the victims advisory panel. Section 55 of the 2004 Act requires the panel to produce an annual report for any year in which it has been asked to provide advice by the Justice Secretary. Under section 55, the Justice Secretary is required to publish those reports and lay them before Parliament and it is in that way and to avoid duplication that the commissioners work will be laid before Parliament.

Alun Michael: What is not clear from what my hon. Friend has just said, and which was extremely helpful, is whether the commissioners report will be laidor is she saying that it will only be assimilated within the panels report?

Maria Eagle: It seems sensible to have one report instead of two, given that the commissioner will be chairing the victims advisory panel. The victims advisory panels report will be subsumed within the one that the commissioner will be producing. It is sensible to have one report, not two. That is my central point.
Although I have been a Minister for many years, I do not quite have the confidence of my right hon. Friend and others that dealing with complaints from any victim in the country would not be resource-intensive. Even a one-stop shop can have a lot of bits of paper coming in and out of it. My right hon. Friend said that such a system would not be very costly, resource-intensive or people-intensive, but I am not convinced that that would end up being accurate. While it is absolutely true that there is a much increased level of victim satisfaction, partly as a result of the work in respect of the developments in support of witnesses, that is not to say that a new portal for complaints will not be inundated with complaints from various people who think that it is another way to get their point across. Many of us in Committee will realise from our constituency work that we are often seen ourselves as appeals against court cases that went wrong. Whether or not there is anything that we can do about such matters, we end up hearing from constituents who wish us to agree that something ought to be done.

Tim Boswell: I am sure that the Minister will be relieved to know that I describe myself as either a one-stop shop or even, possibly in dramatic terms, as a bit of joined-up government. We have an integrating function. Will she at least concede in respect of the comments by the right hon. Member for Cardiff, South and Penarth that, while there may be some abuse, there is nevertheless the need for some facilityeither at local or national levelso that people who are distressed about their handling and are confused by the circumstances such as someone who has been falsely accused, which has happened to one of my constituents recently, know and have reassurance that they will receive proper advice and get the thing dealt with?

Maria Eagle: I understand the hon. Gentlemans point. There are complaints procedures in all public authorities, and I accept the argument by my right hon. Friend the Member for Cardiff, South and Penarth that there are many different agencies in the criminal justice system, but we have done a lot more locally and nationally to join up the agencies and make them talk to each other.
We have a nationwide victim support body that is funded generously by central Government to give advice. There are citizens advice bureaux and, I hesitate to say, local Members, although we do end up being one place where people seek advice. At the end of the day, however, the criminal justice agencies have to, and ought to, deal with complaints properly. There is a series of ombudsmen thereafter. Of course, one cannot take judicial decisions to them, but criminal justice agencies do certain things that one might. We do not want to impose or create some other portal that may or may not help, however.

Tim Boswell: Will the Minister at least consider encouraging the various agencies to pick up and run with the so-called no wrong door concept that the Government developed a few years ago, although we have not heard about it recently, so that, if somebody makes an application to the wrong people, theythat agencywill refer them to the right people?

Maria Eagle: It sounds so simple, but administratively these things often end up being much more complicated than such simple, sensible-sounding ideas that we all can and do come up with, and which my right hon. Friend has come up with in his new clause. Although I understand his points, I am not convinced that we would envisage such a role for the commissioner. There is no doubt that the commissioner will be in receipt of complaints, but I am not convinced that they should become a clearing house for them. I hope that my right hon. Friend will not press his new clause, because we do not envisage conferring on the commissioners role a statutory complaints function. However, the criminal justice agencies need to improve their performance, and we would seek to make them do so, as would the other victim support infrastructure, which did not exist in 2004 when the original legislation was passed.
I hope that I have been able to deal with my right hon. Friends amendment. He may not be quite so happy with what I have said about his new clause, but I hope that he will withdraw his amendment and not press to a Division his new clause.

Alun Michael: I am grateful to my hon. Friend for her response, as far as it goes. On the report to Parliament, she has gone some way to providing reassurance, and if, in effect, the commissioners report will incorporate the panels report, that is satisfactory. However, I urge my hon. Friend to consider whether that point ought to be clarified in some formal embodiment of what she has told us today, because it is reassuring.
I am less happy about what my hon. Friend said on complaints, because she missed the point that I underlined: at the beginning of the Committee, we took evidence on the existence of 10 different ways of dealing with complaints from the 10 different agencies that operate in the criminal justice system. Indeed, the 10 agencies may be the tip of the iceberg, because when we sub-divide things, the issue may be more complex. I accept my hon. Friends point that it is complicated for Ministers to find a way through the undergrowth of improving the performance of different parts of the criminal justice system to make it more receptive to the interests of the individuals. However, we should think what it is like, therefore, for a victim who has to decide which door to knock at. We should think also about the complexity of making complaints to the ombudsmen, some of which have to be made directly to the people who will have administered the problem, even if the complainant can work out which agency is responsible.
I urge my hon. Friend to consider the matter further, and whether there should be a capacity not to undertake the investigation of complaints but, where necessary, to knock heads together. The success of the commissioner will be judged on their saying, I no longer have to do this, because it is clear where people should go with their complaints and that the no wrong door principleto which the hon. Member for Daventry referred and I know Ministers aspirehappens in practice. That is my hope, and I ask my hon. Friend as gently as I can to reconsider her rejection of the new clause. I appreciate that it is not a totally worked through suggestion, but it could be. I urge her to give it further thought and I hope that we will see Government amendments coming forward, or perhaps it would be appropriate to make further suggestions on Report. I do not wish to detain the Committee any further and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 122 ordered to stand part of the Bill.

Clauses 123 and 124 ordered to stand part of the Bill.

Schedule 15

Treatment of convictions in other member States etc

Maria Eagle: I beg to move amendment 300, in schedule 15, page 160, line 38, at end insert
(9) For the purposes of subsection (10) foreign service offence means an offence which
(a) was the subject of proceedings under the service law of a country outside the United Kingdom, and
(b) would constitute an offence under the law of England and Wales or a service offence (the corresponding domestic offence) if it were done in England and Wales by a member of Her Majestys forces at the time of the trial for the offence with which the defendant is now charged (the current offence).
(10) Where a defendant has been found guilty of a foreign service offence (the previous service offence), for the purposes of subsection (2)
(a) the previous service offence is an offence of the same description as the current offence if the corresponding domestic offence is of that same description, as set out in subsection (4)(a);
(b) the previous service offence is an offence of the same category as the current offence if the current offence and the corresponding domestic offence belong to the same category of offences prescribed as mentioned in subsection (4)(b).
(11) In this section
Her Majestys forces has the same meaning as in the Armed Forces Act 2006;
service law, in relation to a country outside the United Kingdom, means the law governing all or any of the naval, military or air forces of that country..

Frank Cook: With this it will be convenient to discuss Government amendments 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320 and 354.

Maria Eagle: All the amendments are minor and technical. Amendments 301 to 304, 313 and 314 are minor and technical in that they change the tenses used but not the meaning or application of the provisions. Amendment 315 is a minor amendment that clarifies that an offence is relevant if it was an offence under UK law
at the time of the conviction.
The previous formulation of
at the time of the trial
may not have covered those circumstances where the offender pleaded guilty.
Amendment 318 is a minor amendment that corrects the statutory reference to section 110 of the Powers of the Criminal Courts (Sentencing) Act 2000. Amendment 310 is a minor, technical amendment that does not change the meaning or application of the provision.
Amendments 300, 305 to 309, 311 to 312, 316 to 317, and 319 to 320 add service offences committed under the law of other member states to the previous convictions covered by these provisions. In respect of section 103 of the Criminal Justice Act 2003, which deals with bad character evidence, the amendments include all foreign service offences. This is in line with both the current position in case law and the changes being introduced in the Bill. All these amendments are consistent with how previous UK service offences are used in domestic criminal proceedings.

Edward Garnier: I do not quarrel with the Government amendments. I just want to be sure that when a defendant has been convicted of an offence under the law of any country outside England and Wales, a provision will enable the English courts to inquire into the process by which the overseas conviction was arrived at. Obviously, within the European Union and other countries in which we are confident about their criminal justice system, we can be reasonably sure that a conviction has been arrived at fairly. There may be other jurisdictions where we are not so sure, and I want us to be clear that the Government have taken that into account before the amendments become part of the Bill.

Maria Eagle: I hope to convince the hon. and learned Gentleman that we have taken that into account. The schedule implements the Council framework decision of 24 July 2008 on taking account of convictions in EU member states in the course of new criminal proceedings. It will require the courts to give the same weight to previous convictions whether the offence occurred in the UK or elsewhere in the EU and will strengthen public protection.
Such convictions would only be taken into account by the courts subject to the same safeguards as apply to taking into account domestic convictions. This would include the need for the courts to be satisfied that such convictions are proved. In addition, such convictions could only be taken into account if they concern offences having equivalent domestic offences.
In response to the hon. and learned Gentlemans question, it is ultimately a matter for the courts to decide whether they are satisfied that any criteria for admissibility are met. We will consider what measures might be necessary to assist courts in that task before we implement the provisions. However, to a degree, member states already share information on a regular basis, and previous convictions from other member states are already adduced in evidence. On that basis, I hope that he is convinced that there will be appropriate safeguards.

Edward Garnier: Is the Minister telling me that the schedule applies only to convention countries, or does it apply across the world?

Maria Eagle: It is implementing an EU directive

Edward Garnier: I do not want to confuse the Minister now. Will she write to me about it? If there is any doubt, which I do not suppose there will be, it can be cleared up in correspondence.

Maria Eagle: Indeed it can be.

Amendment 300 agreed to.

Amendments made: 301, in schedule 15, page 163, line 6, leave out have constituted and insert constitute.
Amendment 302, in schedule 15, page 163, line 7, leave out had been and insert were.
Amendment 303, in schedule 15, page 163, line 18, leave out have constituted and insert constitute.
Amendment 304, in schedule 15, page 163, line 19, leave out had been and insert were.
Amendment 305, in schedule 15, page 163, line 26, leave out or.
Amendment 306, in schedule 15, page 163, line 26, at end insert
(b) after paragraph (b) insert or
(c) a finding of guilt in respect of a member State service offence..
Amendment 307, in schedule 15, page 163, leave out lines 36 to 39 and insert
(6) For the purposes of this section
(a) an offence is relevant if the offence would constitute an offence under the law of any part of the United Kingdom if it were done in that part at the time of the conviction of the defendant for the current offence,
(b) member State service offence means an offence which
(i) was the subject of proceedings under the service law of a member State other than the United Kingdom, and
(ii) would constitute an offence under the law of any part of the United Kingdom, or a service offence (within the meaning of the Armed Forces Act 2006), if it were done in any part of the United Kingdom, by a member of Her Majestys forces, at the time of the conviction of the defendant for the current offence,
(c) Her Majestys forces has the same meaning as in the Armed Forces Act 2006, and
(d) service law, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State..
Amendment 308, in schedule 15, page 164, line 1, leave out , or.
Amendment 309, in schedule 15, page 164, line 4, at end insert , or
(d) a finding of guilt in respect of a member State service offence..
Amendment 310, in schedule 15, page 164, line 7, leave out Isles or and insert Islands and.
Amendment 311, in schedule 15, page 164, line 11, at end insert or a member State service offence.
Amendment 312, in schedule 15, page 164, leave out lines 14 to 17 and insert
(5) For the purposes of this section
(a) an offence is relevant if the offence would constitute an offence under the law of any part of the United Kingdom if it were done in that part at the time of the conviction in respect of the current offence,
(b) member State service offence means an offence which
(i) was the subject of proceedings under the service law of a member State other than the United Kingdom, and
(ii) would constitute an offence under the law of any part of the United Kingdom, or a service offence, if it were done in any part of the United Kingdom, by a member of Her Majestys forces, at the time of the conviction of the defendant for the current offence, and
(c) service law, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State..
Amendment 313, in schedule 15, page 165, line 3, leave out have constituted and insert constitute.
Amendment 314, in schedule 15, page 165, line 4, leave out had been and insert were.
Amendment 315, in schedule 15, page 165, line 5, leave out trial and insert conviction.
Amendment 316, in schedule 15, page 165, line 5, at end insert
() In subsection (8) (as inserted by Schedule 16 to the Armed Forces Act 2006 (c. 52))
(a) in paragraph (a) for the words within the meaning of the Armed Forces Act 2006; and, substitute or a member State service offence;,
(b) in paragraph (b) for service disciplinary proceedings substitute proceedings in respect of a service offence, and
(c) after that paragraph insert
(c) member State service offence means an offence which
(i) was the subject of proceedings under the service law of a member State other than the United Kingdom,
(ii) would constitute an offence under the law of any part of the United Kingdom, or a service offence, if it were done in any part of the United Kingdom, by a member of Her Majestys forces, at the time of the conviction of the defendant for the current offence;
(d) Her Majestys forces has the same meaning as in the Armed Forces Act 2006;
(e) service law, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State;
(f) service offence has the same meaning as in the Armed Forces Act 2006..
Amendment 317, in schedule 15, page 165, line 5, at end insert
8A (1) Section 270B of the Armed Forces Act 2006 (c. 52) (community punishment for offender previously fined) is amended as follows.
(2) In subsection (6) omit or at the end of paragraph (a) and insert
(aa) a conviction by a court in any member State other than the United Kingdom of a relevant offence; or.
(3) In subsection (10)
(a) in paragraph (a) after offence insert or a member State service offence;
(b) in paragraph (b) for such proceedings substitute proceedings in respect of a service offence;
(c) after that paragraph insert
(c) relevant offence means an offence that would constitute an offence under the law of any part of the United Kingdom if it were done in that part at the time of the conviction of the defendant for the current offence;
(d) member State service offence means an offence which
(i) was the subject of proceedings under the service law of a member State other than the United Kingdom, and
(ii) would constitute an offence under the law of any part of the United Kingdom, or a service offence, if it were done in any part of the United Kingdom, by a member of Her Majestys forces, at the time of the conviction of the defendant for the current offence;
(e) the service law of a member State other than the United Kingdom means the law governing all or any of the naval, military or air forces of that State..
Amendment 318, in schedule 15, page 167, leave out lines 12 and 13 and insert
corresponding drug trafficking offence means an offence within section 110(2A)(a)(ii);.
Amendment 319, in schedule 15, page 167, line 15, at end insert
() In section 114 (offences under service law) (as substituted by Schedule 16 to the Armed Forces Act 2006 (c. 52))
(a) after subsection (1) insert
(1A) Where
(a) a person has at any time been found guilty of a member State service offence, and
(b) the corresponding UK offence was a class A drug trafficking offence or a domestic burglary,
the relevant section of this Chapter and subsection (1) above shall have effect as if the person had at that time been convicted in England and Wales of that corresponding UK offence.
(1B) For the purposes of subsection (1A)
(a) member State service offence means an offence which
(i) was the subject of proceedings under the service law of a member State other than the United Kingdom,
(ii) at the time it was done would have constituted an offence under the law of any part of the United Kingdom, or an offence under section 42 of the Armed Forces Act 2006, if it had been done in any part of the United Kingdom by a member of Her Majestys forces (the corresponding UK offence);
(b) Her Majestys forces has the same meaning as in the Armed Forces Act 2006;
(c) service law, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State., and
(b) after subsection (3) insert
(4) Where
(a) the corresponding UK offence is an offence under section 42 of the Armed Forces Act 2006 by reason of section 43, 45, 46 or 47 of that Act (attempting, conspiring to commit, inciting, aiding, abetting, counselling or procuring criminal conduct); and
(b) the act to which it relates (the contemplated act) is not an act that is (or that if done would have been) punishable by the law of England and Wales;
for the purposes of subsections (1A) and (1B) it must be assumed that the contemplated act amounted to the offence under the law of England and Wales that it would have amounted to if it had been the equivalent act in England or Wales..
Amendment 320, in schedule 15, page 167, leave out lines 17 to 20 and insert
10 In section 263 of the Armed Forces Act 2006 (c. 52) (restriction on imposing custodial sentence or service detention on unrepresented offender)
(a) at the end of subsection (2)(b) insert , or sentenced to detention by a court in any other member State or for a member State service offence, and
(b) at the end of subsection (6)(b) insert
(c) member State service offence means an offence which
(i) was the subject of proceedings under the service law of a member State other than the United Kingdom, and
(ii) at the time it was done, would have constituted an offence in any part of the United Kingdom, or a service offence, if it had been done in any part of the United Kingdom by a member of Her Majestys forces;
(d) service law, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State..(Maria Eagle.)

Schedule 15, as amended, agreed to.

Clauses 125 to 127 ordered stand part of the Bill.

Clause 128

Community Legal Service: pilot schemes

Henry Bellingham: I beg to move amendment 493, in clause 128, page 78, line 4, leave out 3 and insert 2.

Frank Cook: With this it will be convenient to discuss the following: amendment 494, in clause 128, page 78, line 19, leave out 3 and insert 2.
Amendment 495, in clause 128, page 78, line 20, leave out 3 and insert 2.
Amendment 496, in clause 128, page 78, line 21, leave out 3 and insert 2.
Amendment 497, in clause 128, page 78, line 43, leave out 3 and insert 2.
Amendment 498, in clause 128, page 79, line 18, leave out 3 and insert 2.
Amendment 499, in clause 128, page 79, line 19, leave out 3 and insert 2.
Amendment 500, in clause 128, page 79, line 20, leave out 3 and insert 2.

Henry Bellingham: The amendments in this group would reduce the pilot scheme period from a maximum of three years to two years. It might be helpful if I provide some background. I cannot think of a larger misnomer than the Access to Justice Act 1999, because it should be the removal of justice Act or, as my hon. and learned Friend christened it, the denial of access to justice Act. The Act took an axe to civil legal aid, and whole areas of civil litigation were basically completely taken out of the legal aid system. This brutal Act was pushed through by the right hon. Member for Ashfield (Mr. Hoon), and nobly opposed by my hon. and learned Friend.
The Act contains a power to pilot schemes in relation to the criminal defence service, but there is no express power to pilot schemes under the community legal service, which obviously covers civil legal aid. How many pilot schemes have been launched under the criminal defence service since the Act was enacted? How much have those schemes cost? Paragraph 621 of the explanatory notes, written by the Department, justifies extending the power to civil legal aid so:
As the LSC continuously monitors, reviews and enhances the services being provided through the CLS, it will occasionally need to explore or pilot new ways of delivering specialist service so that the costs and benefits can be judged in practice.
We certainly support that, but the scheme needs proper focus, real concentration, efficiency and attention to detail. I would have thought it incumbent upon providers of the proposed specialist services

Frank Cook: Order.

Sitting suspended for a Division in the House.

On resuming

Henry Bellingham: The amendments would reduce the maximum period for the pilot schemes from three years to two. The Minister will be aware that the legal aid budget, both civil and criminal, has several serious problems, and that there are severe budgetary restraints. We support the principle of the pilot schemes, but surely the longer the pilot, the greater the cost.

Jennifer Willott: I will be brief. It seems clear from the clause that the purpose of the pilots is to cut overall legal aid expenditure by reducing access for certain groups and by tightening up the means-testing. I want to put on the record our concern about the impact of that on access to justice, particularly for low-income groups. There is already a lot of concern about the level of means-testing for legal aid, and we are worried about a further reduction of access.
I agree with the Conservative amendments to reduce the period for the pilots. Three years is a long time for a pilot and could be detrimental, particularly if it is not working well and is causing harm. Most Government pilots run for between one and two years, so it is unusual to have one running for three years, and I should be grateful if the Minister clarified why the Government decided on three years. It should be easy to decide within two years whether a pilot is good or bad, and that should become obvious much sooner than three years. I should be grateful if the Minister commented on that.

Bridget Prentice: I agree with both the hon. Member for North-West Norfolk and the hon. Member for Cardiff, Central that we want to protect legal aid for the most vulnerable as far as possible. The hon. Gentleman is right in saying that there is great pressure on the legal aid budget, but the pilots are not about cutting access. If anything, they will allow us to extend eligibility.
Proper questions were asked about the length of the pilots. They are normally shorter than two years, but civil cases generally take longer than criminal cases, and that is why we decided on three years. If the period were reduced to two years, the hon. Gentleman would inadvertently allow only those who got into the pilot at the very beginning to see their case go all the way through the system. That is why we extended the period for civil cases from two years to three. Reducing it to two years would reduce our ability to test the new arrangements properly.
The hon. Gentleman asked how many pilots there are. There have not been any yet, because the power came into being under the Criminal Justice and Immigration Act 2008. The clause allows us to extend the period for civil cases, and I hope that the hon. Gentleman will withdraw his amendment.

Henry Bellingham: I am grateful for the Ministers explanation, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 128 ordered to stand part of the Bill.

Clause 129

Excluded services: help in connection with business matters

Question proposed, That the clause stand part of the Bill.

Henry Bellingham: I wanted to ask the Minister a quick question, because the clause excludes from the scope of legal aid cases that relate to an individual planning or proposing to set up a business. How many such cases would fall into that category every year? Since the Access to Justice Act 1999 was put on the statute book 10 years ago, how much has been spent on that category of cases and how big a problem is it?

Bridget Prentice: I do not think that I can give the hon. Gentleman particular details at this stage, but I will write to the Committee with further information on that.
The clause is included so that we remove any possible ambiguity, making it clear that cases involving prospective business activity or the termination of business activity are excluded from the scope of the Bill. That provision is included so that we can target civil legal aid at those who are most vulnerable. I will write to the hon. Gentleman with details of the costs so far.

Question put and agreed to.

Clause 129 accordingly ordered to stand part of the Bill.

Clause 130ordered to stand part of the Bill.

Clause 131

Criminal Defence Service: enforcement of order to pay cost of representation

Henry Bellingham: I beg to move amendment 501, in clause 131, page 81, leave out line 19.

Frank Cook: With this it will be convenient to discuss the following: amendment 502, in clause 131, page 81, leave out lines 39 and 40.
Amendment 503, in clause 131, page 81, leave out line 42.
Amendment 504, in clause 131, page 82, leave out lines 3 to 29.
Amendment 505, in clause 131, page 82, leave out lines 36 to 38.
Amendment 506, in clause 131, page 82, leave out line 47.
Clause stand part.
That schedule 16 be the Sixteenth schedule to the Bill.

Henry Bellingham: The clause covers the recovery of defence costs orders that can be issued in certain circumstances. I should be grateful if the Minister explained why she feels that it is necessary to enable these overdue sums to be recovered by way of a summary action through the magistrates courts. That is the essence of amendments 501 and 503.
We are talking about potentially quite vulnerable people. We are concerned about the inclusion in clause 131(2)(b) of
recoverable summarily as a civil debt,
which is repeated in subsection (3). It is perfectly adequate to continue with the current system that is in place. The clause would give the Government too much power. We are all in favour of recovering overdue sums that are owed, but we are talking about people who are vulnerable in respect of some categories in this area. These are litigants who, for whatever reason, have got themselves into all sorts of trouble. Some will be able to afford to pay up in respect of recovery of defence costs, but others will find that difficult. Why is it necessary to extend the powers in such a significant direction?
Why do we need to have subsection (3)(b), which would include proposed new subsection (2A)(b), under which the Government are asking for enforcement regulations that may
provide for the withdrawal of an individuals right to representation in certain circumstances?
I am not prepared to just let that go by on the nod, because that is a significant step. We are talking about withdrawing an individuals right to representation. Why is it necessary to do that? The substance of our amendment would take that provision out. It is a probing amendment and I put it to the Minister in that spirit, because we do not want to wreck the clause. However, although she might tell me that most of the people involved could well afford to pay overdue costs, some will find it difficult. To withdraw from them the right to representation is a step too far.
Amendments 502, 504 and 506 deal with the part of the clause that enables the court effectively to issue vehicle sale orders. They are probing amendments that withdraw from the clause all references to vehicle sale orders, motor sale orders and all the business about motor vehicles being clamped, sold or otherwise disposed of.
My hon. and learned Friend the Member for Harborough mentioned how important it is that offenders are rehabilitated. He spoke eloquently about how a persons car is often the critical requirement for them to find a job and get their life back on track. Is it fair to go after the cars of the most vulnerable people in society? Often, we will be talking not about Aston Martins but about clapped-out Astras or Peugeots. To have them clamped and taken away to recover costsalbeit overdue onesis a power too far that could be abused. I would like the Minister to justify that to the Committee.

Jennifer Willott: I share the hon. Gentlemans concerns, in particular on two issuesthe withdrawal of the right to representation and the removal of a car. He has already made eloquent comments on the need for a car, particularly for purposes of work. The measure relates to repayment of a debt, but if the car is taken away it will become almost impossible for that person to get a job, particularly since, by dint of being under these provisions, they will already have a criminal conviction. They will be doubly disadvantaged in the job market.
The provision states that the value of the car must be at least half the value of the debt. If a vehicle is someones main asset and their only way of getting work, how can they be expected to repay the other half of the debt if the vehicle has been sold and they do not have it? It seems a short-sighted measure. I understand why it looks like an attractive prospect, but I share the concerns outlined by the hon. Gentleman.

Bridget Prentice: Obviously, we are committed to the principleshared, I hope, by the rest of the Committeethat those who can genuinely afford to pay towards their defence costs in criminal proceedings should do so. That was underpinned by the introduction of means-testing in magistrates courts in 2006. Our recent consultation extended that to the Crown court. It is essential that the proposed scheme for means-testing in the Crown court, under which certain defendants would be required to contribute from their disposable income throughout the life of the case, is backed up by an effective and efficient system for collecting and enforcing contributions. We often get criticised for not ensuring that we collect those contributions as speedily as we ought to, and we have a clear responsibility to ensure that contributions are paid in a fast, effective and firm way. The sanctions will include the existing measures of attachment of earnings, distress warrants, freezing injunctions, third party debt orders and charging orders, as well as the new powers set out in the clause and schedule 16.
The hon. Member for North-West Norfolk asks why we need this measure, but it is nothing new. It simply repeats the provision in the Access to Justice Act. I recognise that it might appear to be drawn widely. If it is, I will look at it again to ensure that it is not too wide. However, we do not intend to withdraw the right to representation except where the applicant asks for it. It will not be a decision for the court or anyone else; it will be a decision for the applicant if they feel that they do not need representation and can proceed with the situation as it stands.
Amendments 501 and 503 remove the provision that contribution orders and recovery of defence costs orders be enforceable summarily as civil debts in the magistrates court. The effect would be that the Legal Services Commission had to go to the county court or the High Court to have the orders enforced, which would remove the flexibility provided by the system put forward here. Magistrates courts are well suited to collecting unpaid sums from a defendants income, whereas the county court and the High Court enforce debts by the seizure of bank accounts, stocks, shares and other property. Enabling enforcement to take place in any of the courts will speed up the process and maximise savings from the scheme. The amendments would undermine the swiftness and the focus on debt recovery at the earliest possible stage.
Amendments 504 to 506 concern removing the power to seek vehicle clamping orders following non-payment in limited circumstances. The proposed Crown court scheme includes a generous and fair assessment process, which can accurately calculate the defendants liability to pay towards the representation, and a hardship unit will act as an additional safeguard for those who are judged able to contribute but who feel that they cannot meet the terms of their payment plan. Where a defendant can genuinely pay a contribution but wilfully neglects to do so, it is essential that the Government can take effective action to recover the debt. It is equally important that, before the enforcement action is taken, every effort has been made by the Legal Services Commission to encourage voluntary compliance and to offer support if necessary to those who need assistance in paying the debt.
I stress that the application to the court for a clamping order and/or an order for sale would only be made in appropriate cases, when all other avenues had been explored but the defendant had still wilfully failed to comply with the contribution order.
I will not go down the road of arguing that a car is needed to get employment, because I personally do not think that a car is a necessity to find employment. We have a public transport system that people can use. So that argument should not be used as the be-all and end-all in considering the clause.

Jennifer Willott: Will the Minister confirm whether the provision of public transport will be taken into account when deciding on an order under part 6? There are certainly parts of the country where using public transport is simply not a viable way for someone to hold down a job. Would that be taken into account?

Bridget Prentice: I have just said that the court, in making a decision, would only make it appropriately and when all other avenues have been explored. I assume that the court would take into account all of the defendants concerns and needs before deciding to make the clamping order. Schedule 16 makes it clear that any regulations made for the detailed operation of motor vehicle orders would offer protection to defendants: first, the court must be satisfied that failure to pay is a result of wilful refusal or culpable neglect and that the amount raised by the sale would exceed half the amount due; secondly, by specifying that a disabled persons vehicle may never be the subject of an order; and thirdly, by specifying that, once a vehicle has been clamped, it may not be sold until after a specified period.
The powers set out in clause 131 and schedule 16 add to existing measures, ensuring that the defendant who can afford to but nevertheless fails to comply will face a speedy, effective but proportionate sanction. On that basis, I hope that the hon. Gentleman feels able to withdraw the amendment.

Henry Bellingham: I am grateful to the Minister for her explanation, which was given with her usual courtesy and understanding of our position. I would take her to task for what she said about cars, but I shall not go down that byway tonight, Mr. Cook, because you might well call me to order. On the basis of what the Minister has said, some of the assurances that she has given to us and her commitment to look again at one or two aspects, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 131 ordered to stand part of the Bill.

Schedule 16 agreed to.

Clause 132 ordered to stand part of the Bill.

Clause 133

Exploitation proceeds orders

Question proposed,That the clause stand part of the Bill.

Henry Bellingham: We have supported the Governments policy of including part 7 on criminal memoirs in the Bill and have taken the view for some time that people who commit heinous crimes should not benefit financially from them after their release or, as in some cases, while they are in prison. Will the Minister give us a two-minute thumbnail sketch, which will be a challenge for her, of how the clause will work?

David Howarth: Like the hon. Gentleman, I have no objection to the general principleindeed, I support itthat people should not benefit from their own wrong. Civil remedies in this area are more difficult to obtain than and are not as extensive as some academic commentators would have us believe. I have two points, however, one of which applies to the whole of part 7, while the other, which I would like the Minister to address, relates specifically to clause 133.
On the general point, there is rightly very little sympathy for a criminals right to express themselves and gain from writing about or exploiting their criminal career. Nevertheless, freedom of speech is not only about the rights of people to share information, but about the rights of other people to receive it. I am slightly concerned that the rights of the general public, who might view certain information or opinions as useful, have not entirely been taken into account. I will talk about that in slightly more detail when we get to clause 140.
In certain cases, someone taking part in a protest might be found guilty of criminal trespass or some other offence related to direct action, or someone might be found guilty of an offence under the Official Secrets Act, whereby the person expressing their views and telling their story should not particularly have any rights. We should not worry about that, but we should worry about the fact that we as citizens might be denied the opportunity to hear what happened to such people and to judge the authorities actions in the light of that.

Edward Garnier: I may have misunderstood the hon. Gentlemans point and the clause under discussion, but the contents of clause 140 may be of use to him. As I understand it, clause 133 confiscates the profit, but it does not prevent the publication.

David Howarth: As the hon. and learned Gentleman says, we will get to the detail of the issue in clause 140. However, if all profits are taken from certain activities, that will result in less information on those activities being available in the public domain in the long run.

George Howarth: That depends whether an offence has been committed.

David Howarth: Well, there might also be further information of interest to the public. I have no interest in, or brief for, the offender, but the publics interest in hearing about certain activities is affected to some degree. We will come back to the details in clause 140.
My second point is about where the money goes. Under clause 133, the money will go to the Consolidated Fund. In other words, it will go to the Government. Surely, if the concern is mainly with the victims of the crime, the money should go to the victims, or if not to the particular victim, to victims in general.

Maria Eagle: I am happy to deal with the points raised, although the first point that the hon. Member for Cambridge made was somewhat esoteric. I am not going to argue about why we should have the scheme, as everybody seems to agree that we should have it, and it has been quite a long process to decide what balance to strike and how it ought to be done.
Subsection (1) will provide a relevant court with the power to make an exploitation proceeds order against qualifying offenders who have obtained a benefit from exploiting material pertaining to a relevant offence under subsection (3). The order will require the offender to pay a sum of moneythe recoverable amountin respect of the proceeds obtained to the relevant enforcement authority. The order will specify the recoverable amount and identify the benefits to which the order relates. It is intended to make sure that it deters, by way of removing profit, the convicted person from producing their book, memoir, film or whatever if the sole interest is in making a profit for the offender.
Subsection (6) explains that, if a respondent fails to pay the recoverable amount, he or she must pay interest at an appropriate rate. The appropriate rate is defined in subsection (8)(a). Payment itself, including any interest, is made to the Consolidated Fund, although the intention is that it should then be divided up between the enforcement agencies to assist them in carrying out further operations.
The hon. Member for Cambridge is right in saying that the recovery money is not intended to go directly back to victims. Victims of crime can, of course, claim criminal injuries compensation. That is the intention and the purpose of the scheme. As the hon. and learned Member for Harborough said in his intervention, it is not an attempt to prevent freedom of speech or to stop people from publishing; it is an attempt to remove profit from any such publication.
The hon. Member for Cambridge, in his somewhat esoteric first point, was really asking whether there was a public interest test. Enforcement authorities, when deciding whether to apply for a court order, will decide whether there is any public interest in doing so. One expects them to be rather less inclined to take out, or apply for, such an order against a protester who has been locked up than against a triple murderer who is seeking to exploit his notoriety by producing lurid publications to the evident distress of his victims. Those who are responsible for deciding whether to apply for such an orderwhether the Attorney-General or the Serious Organised Crime Agencywill be perfectly capable of making a proper distinction between those two examples.
Clause 133 is the first of a number of clauses in part 7 that will implement the civil recovery scheme and are intended not to prevent publication but, with a public interest test, to protect the fact that there are certain circumstancesfor example, academic researchwhere it would be perfectly sensible to publish and not to remove profits from publications. There will be a small number of cases, perhaps one or two a year at most, where that might deter someone convicted of a serious offence from exploiting the notoriety of their offence for personal and monetary gain.

Edward Garnier: A publishing company that publishes books, as opposed to newspapers, will presumably not enter into a contract to publish if it feels that the book will fall foul of the provision; or will the book publisher be able to make a profit even if the authorthe criminalcannot?

Maria Eagle: The answer to that is probably yes, because we are not intending to chase the publisher or to try to prevent publication. We are trying to prevent the thing that upsets victims and relatives of victims in these instances: the criminalsthe notorious offendermaking a profit from their crime.
I am sure that the hon. and learned Gentleman has had a close look at the Bill. He will know that we do not intend to pursue publishers for any money that they make, but we would expect them to co-operate by telling us of any arrangements that have been made with the individual against whom the order will be made. The intention is to prevent the offender from profiting, not to chase any kind of profit that might result from publication.

Question put and agreed to.

Clause 133 accordingly ordered to stand part of the Bill.

Clause 134

Qualifying offenders

Question proposed, That the clause stand part of the Bill.

David Howarth: I want to ask about clause 134(3), which is about foreign offences. Could the Minister explain why they are covered? Surely the country that should have jurisdiction over offences committed in another country is that country itself. What will happen if the country also has a scheme similar to the one in the Bill?

Maria Eagle: The intention is that for an application to succeed in respect of a case where the offence has occurred on foreign soil, the individual must have been found guilty of an offence that would have constituted an offence had it been committed in the UK, and must be a UK national or resident, or a person who was resident in the UK at the time of the offence. The Bill will catch the individual who goes abroad to commit a heinous offence, which would have been an offence in the UK, is convicted abroad, but then comes back and exploits his crime for profit.

Henry Bellingham: Gary Glitter.

Maria Eagle: Far be it from me to use specific examples, but we can all think of some. [Interruption.] I was responding to the hon. Member for North-West Norfolk, who is clearly still awake, even though it is getting late. I do not wish to pick on particular cases, but clearly there would be a loophole if this arrangement did not apply in such circumstances.

Question put and agreed to.

Clause 134 accordingly ordered to stand part of the Bill.

Clauses 135 and 136 ordered to stand part of the Bill.

Clause 137

Relevant offences

Maria Eagle: I beg to move amendment 321, in clause 137, page 87, line 38, leave out subsection (2)(c) of that section and insert section 135(2)(c)(i) or (ii).
The amendment simply amends a cross-reference to another clause in the Bill which was drafted incorrectly. It is a minor technical amendment.

Amendment 321 agreed to.

Clause 137, as amended, ordered to stand part of the Bill.

Clauses 138 and 139 ordered to stand part of the Bill.

Clause 140

Determination of applications

Question proposed, That the clause stand part of the Bill.

David Howarth: The heart of the scheme is in the clause, because it tells the court how to determine applications for the orders. I want to query whether subsection (3)(d) was broad enough. It states that the courts should take into account:
the social, cultural or educational value of the activity or product.
As the Minister mentioned during the debate on clause 133, there is, as far as I can tell, no general public interest test. What we have instead is a kind of implied public interest test, with various elements of such tests taken individually. What strikes me about social, cultural and educational is that it does not include politicalthe function of holding the Government to account: for example, the case that I mentioned earlier about a protestor.
There is public interest in information coming out about the activity or authority surrounding a conviction of a protestor for a criminal offenceas all criminal offences are coveredwhere the offender might have something useful to say to the public about holding the Government to account. The Minister said that there was a great deal of discretion surrounding that, and that those cases might not be proceeded with, but I would prefer to have some assurance in the Bill.
Another issue is raised by subsection (3)(f), which seems to be fine until it gets to the general public. To the extent to which any victim and family of the victim are offended, I can see why that is highly relevant. But how is the court to judge offence to the general public? Is it to do an opinion poll, or simply to read the headlines of the popular newspapers to judge whether the public have been offended?

Edward Garnier: I have just a bitnot a great dealof sympathy for the hon. Gentlemans comments, which seem to be moving too much towards an undergraduate essay question, rather than looking at what the clause does. It is not for me to respond on behalf of the Government, but I comfort myselfeven if I cannot comfort the hon. Gentlemanby looking at clause 139, which states that
An enforcement authority...may make such an application only with the consent of
the Attorney-General in relation to the High Court in England and Wales, and the Advocate-General in Northern Ireland. I would imagine that those office holders would assess the public interest in relation to subsection (3)(f) when looking at whether the general public are being offended. I cannot imagine that there will be a whimsical application made to the court; it will only be in utterly and obviously offensive cases. I do not imagineI certainly hope notthat an Attorney-General would permit such an application. For example, under the legislation, the lady we mentioned who read out the names on the Cenotaph will be prohibited from selling a pamphlet about her arrest and detention.

David Howarth: That is exactly the kind of example that I am slightly worried about, given that the people the lady would be complaining about would be the Government, who would have discretion over whether to apply for an order.

Edward Garnier: That is the whole point about having an Attorney-General who is an independent law officer, and not as political as, perhaps, some Attorneys-General have been in the recent past. The scheme is there and I can see that, even in notorious and obviously offensive cases, there will be all sorts of arguments about articles 8 and 10 of the convention, and that is what judges are there to arbitrate. However, I do not share the hon. Gentlemans concerns in relation to the application. I hope that it will be dealt with as a matter of common sense, that those cases that clearly offend will be dealt with and that exploitation orders will be made so that those, such as the lady about whom we spoke and others of a similar nature, will be left alone.
The Government will have to work out whether, in future, there will be demands from tabloid newspapersnot only from television, but from newspapers generally. They make money predominantly on the serialisation of such publications. The book publishers are not making the money; it is the author who makes the most money, up front, from serialisation in the Sunday papers. That is where the money will come from to resist these applications; and the Government will have to apply their minds to picking the right case rather than taking a scattergun approach.

Maria Eagle: First, I reiterate the fact that no one will be prevented from publishing anything. The hon. and learned Gentleman was wrong when he said that the lady reading out the names on the Cenotaph might be prevented from publishing a pamphlet. She would not be prevented from publishing anything

Edward Garnier: I think that I said selling a pamphlet.

Maria Eagle: She would not be prevented from selling it; she would be prevented from making a profit if such a case were to become part of the scheme, which it patently will not.
I shall answer the hon. Member for Cambridge. The hon. and learned Member for Harborough was right to say that enforcement authorities, when deciding whether to apply for a court order, would have to take account of whether there was a public interest in doing so. In turn, an application having been made, the court is to consider the factors. Clause 140(3)(c) states that it must consider:
the extent to which the carrying out of the activity or the supplying of the product is in the public interest.
Clause 140(2)(b) states that the court may
take account of such other matters as it considers relevant.
I think that the Committee will agree that that is pretty comprehensive, and that we need not worry too much about the concerns that have been raised.
I hope that I have convinced the Committee. I beg to move that the clause stand part of the Bill.

Question put and agreed to.

Clause 140 accordingly ordered to stand part of the Bill.

Clause 141 ordered to stand part of the Bill.

Clause 142

The available amount

Maria Eagle: I beg to move amendment 322, in clause 142, page 90, line 30, leave out third parties, and insert
a person other than the respondent,.
This is a minor amendment, which is intended to improve the clarity of this section of the Bill.

Amendment 322 agreed to.

Clause 142, as amended, ordered to stand part of the Bill.

Clause 143 ordered to stand part of the Bill.

Clause 144

Effect of conviction being quashed etc

Maria Eagle: I beg to move amendment 323, in clause 144, page 92, line 9, leave out subsections (1) to (4) and insert
(1) Where an exploitation proceeds order has been made in respect of exploitation proceeds obtained by the respondent from a relevant offence, the order ceases to have effect if
(a) where that offence
(i) is within section 137(1)(a), or
(ii) is within section 137(1)(c) by virtue of it being associated with an offence within section 137(1)(a),
the respondents conviction for the offence within section 137(1)(a) is subsequently quashed, or
(b) where that offence
(i) was taken into consideration by a court in determining the sentence imposed on the respondent for an offence within section 137(1)(a), or
(ii) is within section 137(1)(c) by virtue of it being associated with an offence so taken into consideration,
the respondents conviction for the offence within section 137(1)(a) is subsequently quashed.
(2) Where an exploitation proceeds order has been made in respect of exploitation proceeds obtained by the respondent from 2 or more relevant offences, the order ceases to have effect if paragraph (a) or (b) of subsection (1) applies in relation to each of those offences.
(3) Where an exploitation proceeds order ceases to have effect under subsection (1) or (2), the court must, on the application of the respondent (or the respondents personal representative), order the Secretary of State to repay to the respondent (or the personal representative) the recovered amount.
(4) Subsection (4A) applies where an exploitation proceeds order has been made if
(a) where the order was made in respect of exploitation proceeds obtained by the respondent from 2 or more relevant offences, paragraph (a) or (b) of subsection (1) applies in relation to one or more, but not all, of those offences, or
(b) where the order was made in respect of exploitation proceeds obtained by the respondent from a relevant offence within section 137(1)(c) (whether alone or together with other relevant offences), another person has been convicted of that offence and that conviction is subsequently quashed.
(4A) On the application of the respondent (or the respondents personal representative), the court may
(a) determine that the exploitation proceeds order is to cease to have effect, or
(b) reduce the recoverable amount by such amount (if any) as it considers just and reasonable.
(4B) Where the exploitation proceeds order ceases to have effect under subsection (4A)(a), the court must order the Secretary of State to repay to the respondent (or the respondents personal representative) the recovered amount.
(4C) Where the court reduces the recoverable amount under subsection (4A)(b), if the recovered amount exceeds the reduced recoverable amount, the court must order the Secretary of State to repay to the respondent (or the respondents personal representative) that excess..

Frank Cook: With this it will be convenient to discuss Government amendments 324 to 328

Maria Eagle: Clause 144 deals with circumstances in which an offenders conviction for a relevant offence to which an exploitation proceeds order relates is subsequently quashed. As drafted, the clause provides that the exploitation proceeds order will cease to have effect if the offenders conviction for the relevant offence is quashed. In such circumstances, and on the offenders application to the court, the court will order the offender to be reimbursed with interest. It also provides that if the exploitation proceeds order relates to more than one relevant offence and some but not all are subsequently quashed, the court has the discretion to reduce accordingly the amount specified in the order.
Amendments 323, 324, 326 and 328 ensure that the clause also makes suitable provision in respect of quashed convictions where the relevant offence to which the exploitation order relates is an offence taken into consideration or the associated conviction of another person. The overall effect of the amendments is that if the convictionor if there was more than one, all the convictionsthat brought the offender within the scheme as a qualified offender is subsequently quashed, the order will cease to have effect. Where one but not all such convictions are quashed, or where an associated conviction of another person is quashed on application by the offender, the court has the discretion to decide that the order should cease to have effect, to reduce the recoverable amount, as is just and reasonable in the circumstances, or to leave the order in place unaltered. The amendments deal with a logically possible, but unlikely, situationwe are talking about one or two cases a year, at mostin which action is taken and the conviction of the individual whose money has been removed is subsequently quashed. They are there for completeness.

Amendment 323 agreed to.

Amendments made: 324, in clause 144, page 92, line 33, leave out (2)(b) or (4)(c) and insert (3), (4B) or (4C).
Amendment 325, in clause 144, page 92, line 34, leave out respondent and insert recipient.
Amendment 326, in clause 144, page 93, line 1, at beginning insert In this section
(a) any reference to a conviction for an offence includes a reference to a finding, in relation to the offence, of the kind mentioned in section 134(2)(b) or (c) or (3)(a)(ii) or (iii) or section 135(2)(b) or (3), and.
Amendment 327, in clause 144, page 93, line 1, leave out in this section.
Amendment 328, in clause 144, page 93, line 26, leave out from order to end of line 27 and insert
, reduced by any amount already repaid under subsection (4C) and disregarding any interest paid under section 133(6).. (Maria Eagle.)

Clause 144, as amended, ordered to stand part of the Bill.

Clauses 145 to 147 ordered to stand part of the Bill.

Schedule 17 agreed to.

Clause 148

Functions of Serious Organised Crime Agency

Question proposed, That the clause stand part of the Bill.

Edward Garnier: This brings us back to clause 139, in which the Serious Organised Crime Agency is described as an enforcement authority, and it is in that guise that it may make an application to the High Court. Obviously, it, and presumably the respondent author, will appear at the application, but is it one of SOCAs functions, in making an application, to adduce evidence from a family or victim? Could the victim or family appear at the application with separate representation?

Maria Eagle: I do not think it is anticipated that the family will need to be represented separately, and SOCA will do that job on their behalf. One would expect that families in the sort of circumstances that we are considering would be quite happy for SOCA to take on that obligation. That is the intention.

Question put and agreed to.

Clause 148 accordingly ordered to stand part of the Bill.

Clauses 149 and 150 ordered to stand part of the Bill.

Clause 155

Orders, regulations and rules

Bridget Prentice: I beg to move amendment 329, in clause 155, page 109, line 32, at end insert
( ) The Statutory Instruments Act 1946 (c. 36) applies in relation to the power of the Chief Coroner under section 28 to make regulations as if the Chief Coroner were a Minister of the Crown..

Frank Cook: With this it will be convenient to discuss Government amendment 330.

Bridget Prentice: These technical amendments concern order-making powers in relation to the chief coroner and driving bans in Scotland respectively.

Amendment 329 agreed to.

Amendment made: 330, in clause 155, page 110, line 13, leave out or 29 and insert , 29 or 30.(Bridget Prentice.)

Clause 155, as amended, ordered to stand part of the Bill.

Clause 156 ordered to stand part of the Bill.

Schedule 19

Minor and consequential amendments

Bridget Prentice: I beg to move amendment 341, in schedule 19, page 196, line 26, at end insert

Part 3A

Witness anonymity orders

Criminal Appeal Act 1968 (c. 19)
59A In section 31 of the Criminal Appeal Act 1968 (c. 19) (powers of Court which are exercisable by single judge), after subsection (2E) insert
(2F) The power of the Court of Appeal to make a witness anonymity order under Chapter 2 of Part 3 of the Coroners and Justice Act 2009 or to discharge or vary a witness anonymity order under section 76 of that Act may be exercised by a single judge in the same manner as it may be exercised by the Court.

Court Martial Appeals Act 1968 (c. 20)
59B In section 36 of the Court Martial Appeals Act 1968 (powers of Court which are exercisable by single judge), in subsection (1), after paragraph (j) (as inserted by Schedule 8 to the Armed Forces Act 2006 (c. 52)) insert
(k) to make a witness anonymity order under Chapter 2 of Part 3 of the Coroners and Justice Act 2009 or to discharge or vary a witness anonymity order under section 76 of that Act;.

Criminal Appeal (Northern Ireland) Act 1980 (c. 47)
59C In section 45 of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (powers of Court which are exercisable by single judge), after subsection (3D) insert
(3E) The power of the Court of Appeal to make a witness anonymity order under Chapter 2 of Part 3 of the Coroners and Justice Act 2009 or to discharge or vary a witness anonymity order under section 76 of that Act may be exercised by a single judge in the same manner as it may be exercised by the Court..

Frank Cook: With this it will be convenient to discuss the following: Government amendments 342, 343, 345 to 348 and 351 to 353.
Government new clause 31Transfer to Parole Board of certain functions under the Criminal Justice Act 1991.

Bridget Prentice: With one exception, these amendments deal with various minor and technical issues. The exception relates to new clause 31 and amendments 351, 352 and 353, which seek to amend the provisions in the Criminal Justice Act 1991 relating to the early release of long-term prisoners whose offences were committed before 4 April 2005. It affects prisoners serving determinate sentences of four years or more under the 1991 Act whose release between the halfway and two-thirds point of the sentence falls to be considered by the Parole Board.
Responsibility for making the release decision in the case of those serving 15 years or more will effectively be transferred from the Secretary of State to the Parole Board. In other words, when the Parole Board makes the decision to release a prisoner on parole, it will set the licence conditions, but where the Secretary of State has a duty to release automatically because the prisoner has reached the point in his sentence where he must be released, the Secretary of State will be responsible for licence conditions. That will bring the licence-setting arrangements for long-term 1991 Act prisoners into line with those that apply to all other categories of prisoner. If their release is automatic, the Secretary of State sets the conditions.
The existing provisions were highlighted and tested in a judicial review brought by Wayne Black, a prisoner who was serving more than 15 years and who argued that it contravened article 5 of the European convention on human rights for the Secretary of State to make the decision about his release, rather than the Parole Board. In its judgment the House of Lords found that it was not unlawful, nor a contravention of the ECHR, for the Secretary of State to have the power to decide on the release of determinate sentence prisoners, as their detention is covered by the decision of the original sentencing court. But it was strongly critical of the fact that the release of this particular category of prisoner remains a decision for the Secretary of State rather than the Parole Board. These amendments therefore respond to that criticism. I hope that that is sufficient to satisfy members of the Committee on these changes. If hon. Members have other questions, I am happy to try to answer them.

Amendment 341 agreed to.

Amendment made: 342, in schedule 19, page 205, line 11, at end insert

Criminal Justice and Immigration Act 2008 (c. 4)
86 (1) The Criminal Justice and Immigration Act 2008 (c. 4) is amended as follows.
(2) In section 11(6) and (7) for (1A)(b) substitute (1A)(c).
(3) In paragraph 76 of Schedule 4
(a) in sub-paragraph (3) for (1A)(a) substitute (1A)(b);
(b) in sub-paragraph (5)(b) and (6) for (1A)(b) (in each place it occurs) substitute (1A)(c)..(Bridget Prentice.)

Schedule 19, as amended, agreed to.

Schedule 20

Transitional, transitory and saving provisions

Amendments made: 343, in schedule 20, page 206, line 16, at end insert
(3A) A person who
(a) becomes an assistant coroner as the result of sub-paragraph (3), and
(b) would accordingly (but for this sub-paragraph) be entitled to fees under paragraph 16 of Schedule 3,
is instead entitled to a salary under paragraph 15 of that Schedule if immediately before becoming an assistant coroner he or she was a deputy coroner remunerated by a salary.
(3B) Paragraphs 15(6) and 17 of Schedule 3 have effect as if a reference to an area coroner included a reference to a person within sub-paragraph (3A)..
Amendment30, in schedule 20, page 206, line 37, at end insert

Investigation by former coroner
A person who
(a) was appointed as a coroner under section 1 of the 1988 Act, and
(b) ceased to hold office as such before the coming into force of the repeal by this Act of that section,
is to be treated for the purposes of paragraph 2(1B) of Schedule 8 as having held office as a senior coroner..
Amendment344, in schedule 20, page 209, line 8, at end insert
 In section 61(11A)(a) the reference to 12 months is to be read as a reference to 6 months in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44)..
Amendment 345, in schedule 20, page 209, line 32, leave out section 6 of.
Amendment 346, in schedule 20, page 210, line 9, at beginning insert In this paragraph
appeal court has the meaning given by section 11 of the 2008 Act;.
Amendment 347, in schedule 20, page 210, line 10, at end insert
16A (1) Section 75 of this Act has effect with the modifications made by this paragraph for the purposes of discharging or varying
(a) a witness anonymity order made under the Criminal Evidence (Witness Anonymity) Act 2008 (c. 15) by a court-martial constituted under the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53), or
(b) a witness anonymity order made under Chapter 2 of Part 3 of this Act by a court-martial constituted under any of those Acts.
(2) The references in section 75(2) to (5) to the court that made the order are to be treated
(a) until the coming into force of the Armed Forces Act 2006 (c. 52), as references to a court-martial constituted under the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or, as the case may be, the Naval Discipline Act 1957 (c. 53), and
(b) after the coming into force of the Armed Forces Act 2006 (c. 52), as references to the Court Martial established under that Act.
16B (1) Notwithstanding section 80, references in Chapter 2 of Part 3 of this Act to a service court are to be treated as including a reference to
(a) a court-martial constituted under the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53);
(b) the Summary Appeal Court established by any of those Acts;
(c) a Standing Civilian Court established under the Armed Forces Act 1976 (c. 52);
(d) the Courts-Martial Appeal Court.
(2) Notwithstanding subsection (6) of section 76 of this Act, the references in section 76 to an appeal court are to be treated as including a reference to the Courts-Martial Appeal Court.
(3) Each of the provisions mentioned in sub-paragraph (4) has effect with the modification set out in that sub-paragraph in a case where
(a) a witness anonymity order is made under Chapter 2 of Part 3 of this Act by a relevant service court to which that provision applies, and
(b) a person does anything in relation to the order which would, if the court had been a court of law having power to commit for contempt, have been contempt of that court.
(4) In such a case
(a) section 101(1) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) has effect with the omission of the words not subject to military law;
(b) section 101(1) of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) has effect with the omission of the words not subject to air-force law; and
(c) section 65(1) of the Naval Discipline Act 1957 (c. 53) has effect with the omission of the words not subject to this Act.
(5) In sub-paragraph (3) relevant service court means
(a) a court-martial constituted under the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53);
(b) the Summary Appeal Court established by any of those Acts..
Amendment 348, in schedule 20, page 210, line 16, at end insert
17A (1) If paragraph 59B of Schedule 19 to this Act comes into force before the commencement of the Armed Forces Act 2006 (c. 52), the reference in paragraph 59B to the Court Martial Appeals Act 1968 (c. 20) is to be read as a reference to the Courts-Martial (Appeals) Act 1968 (c. 20).
(2) Until the coming into force of the Armed Forces Act 2006 (c. 52), section 36(1) of the Courts-Martial (Appeals) Act 1968 (c. 20) has effect as if for the words under this Part of this Act there were substituted under this Part of this Act or under Chapter 2 of Part 3 of the Coroners and Justice Act 2009..
Amendment 349, in schedule 20, page 210, line 36, leave out reference in paragraph and insert references in paragraphs 21A and.
Amendment 350, in schedule 20, page 210, line 38, leave out includes and insert include.
Amendment 351, in schedule 20, page 214, line 24, at end insert
36A (1) Except as provided by this paragraph
(a) section 37(5A) of the 1991 Act (as inserted by section [Transfer to Parole Board of certain functions under the Criminal Justice Act 1991](3)(b) of this Act) applies to prisoners released on licence under section 35(1) of that Act before (as well as after) commencement, and
(b) the repeal by this Act of section 37(5) and (6) of that Act applies to such prisoners and to prisoners released on licence under section 33(2), (3) or (3A) of that Act before (as well as after) commencement.
(2) The repeal by this Act of section 37(5) of the 1991 Act does not affect its continued application to a prisoner where
(a) the prisoner is released on licence after commencement under section 33(2), (3) or (3A) or 35(1) of that Act, but
(b) the Parole Board has before commencement exercised the function under section 37(5) of that Act of making recommendations as to any condition to be included or inserted as a condition in the prisoners licence (including by making a recommendation that no condition should be included in that licence).
(3) The repeal by this Act of section 37(5) of the 1991 Act does not affect its continued application to a prisoner where, before commencement
(a) the prisoner has been released on licence under section 33(2), (3) or (3A) or 35(1) of that Act, and
(b) the Parole Board has exercised the function under section 37(5) of that Act of
(i) making recommendations as to the inclusion or insertion of a condition in the prisoners licence (including by making a recommendation that no condition should be included in that licence), or
(ii) making recommendations as to the variation or cancellation of any such condition (including a recommendation that the condition should not be varied or cancelled).
(4) Nothing in this paragraph applies to a person whose licence has, before commencement, ceased to be in force by virtue of section 37(1) of the 1991 Act.
(5) In this section
(a) commencement means the commencement of section [Transfer to Parole Board of certain functions under the Criminal Justice Act 1991](3);
(b) the 1991 Act means the Criminal Justice Act 1991 (c. 53) (as it continues to apply to persons sentenced for offences committed before 4 April 2005);
(c) the reference in sub-paragraph (1)(a) to section 35(1) of the 1991 Act includes a reference to that provision as modified (for certain long-term prisoners) by the Parole Board (Transfer of Functions) Order 1998 (S.I. 1998/3218);
(d) the references in sub-paragraphs (2)(a) and (3)(a) to section 35(1) are to that provision as so modified;
(e) the references in sub-paragraphs (2) and (3) to section 37(5) of the 1991 Act are to that provision as so modified..(Bridget Prentice.)

Schedule 20, as amended, agreed to.

Clause 157 ordered to stand part of the Bill.

Schedule 21

Repeals

Amendments made: 352, in schedule 21, page 218, line 37, at end insert
Criminal Justice Act 1991 (c. 53)
Section 37(5) and (6).
Section 50..
Amendment 354, in schedule 21, page 219, line 9, at end insert
In section 270B.
(a) in subsection (6), the or following paragraph (a);
(b) in subsection (10), the and following paragraph (a)..
Amendment 353, in schedule 21, page 219, line 9, at end insert
Criminal Justice and Immigration Act 2008 (c.4)
Section 27..
(Bridget Prentice.)

Schedule 21, as amended, agreed to.

Clauses 158 and 159 ordered to stand part of the Bill.

Clause 160

Extent

Bridget Prentice: I beg to move amendment 331, in clause 160, page 112, line 16, at end insert
(except sections 136(1) and (2), 148(2) and 149 and Schedule 17).

Frank Cook: With this it will be convenient to discuss Government amendments 332 to 336.

Bridget Prentice: The amendment is technical.

Amendment 331 agreed to.

Amendments made: 332, in clause 160, page 112, line 29, after 8, insert , 13(2).
Amendment 333, in clause 160, page 112, line 34, leave out Paragraph 30 and insert Paragraphs 29 and 30.
Amendment 334, in clause 160, page 113, line 5, after 3,, insert and paragraph 59B of Schedule 19.
Amendment 335, in clause 160, page 113, line 5, after 16, insert , 16A, 16B.
Amendment 336, in clause 160, page 113, line 5, after 17, insert and 17A.(Bridget Prentice.)

Clause 160, as amended, ordered to stand part of the Bill.

Clause 161

Commencement

Amendments made: 337, in clause 161, page 113, line 17, leave out 85 and insert 86.
Amendment 338, in clause 161, page 113, line 43, at end insert
( ) paragraphs 59A to 59C of Schedule 19 (and section 156(1) so far as relating to those provisions);.
Amendment 339, in clause 161, page 113, line 44, after 16, insert , 16A, 16B.
Amendment 340, in clause 161, page 113, line 44, after 17, insert and 17A.(Bridget Prentice.)

Clause 161, as amended, ordered to stand part of the Bill.

Clause 162 ordered to stand part of the Bill.

New Clause 30

Anonymity in investigations: public interest immunity
Nothing in this Chapter affects the common law rules as to the withholding of information on the grounds of public interest immunity..(Bridget Prentice.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 31

Transfer to Parole Board of certain functions under the Criminal Justice Act 1991
(1) Part 2 of the Criminal Justice Act 1991 (c. 53) (as it continues to apply to persons sentenced for offences committed before 4th April 2005) is amended as follows.
(2) In section 35 (power to release long-term prisoners), for subsection (1) substitute
(1) After a long-term prisoner has served one-half of his sentence, the Secretary of State shall, if recommended to do so by the Board, release him on licence.
(3) In section 37 (duration and conditions of licences)
(a) omit subsection (5),
(b) after that subsection insert
(5A) The Secretary of State shall not include on release, or subsequently insert, a condition in the licence of a long-term prisoner to whom section 35(1) applies, or vary or cancel any such condition, except in accordance with recommendations of the Board., and
(c) omit subsection (6).
(4) The reference in subsection (2) above to section 35(1) and the reference in subsection (3)(a) above to section 37(5) each includes a reference to that provision as modified (for certain long-term prisoners) by the Parole Board (Transfer of Functions) Order 1998 (S.I. 1998/3218)..(Maria Eagle.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 1

Coroner for treasure and assistant coroners for treasure
(1) The Lord Chancellor may appoint a coroner, to be known as the Coroner for Treasure.
(2) The Chief Coroner may designate one or more assistant coroners to act as Assistant Coroners for Treasure.
(3) The Lord Chancellor may by regulations make provision in relation to the Coroner for Treasure and Assistant Coroners for Treasure..(Mr. Bellingham.)

Brought up, and read the First time.

Question put, That the clause be read a Second time.

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

New Clause 34

Orders under the Protection from Harassment Act 1997
A court sentencing or otherwise dealing with a person (the defendant) convicted or acquitted of an offence
(a) of grievous bodily harm contrary to sections 18 or 20 of the Offences Against the Person Act 1861;
(b) of any offence contrary to section 21 of the Offences Against the Person Act 1861;
(c) of any offence contrary to sections 22, 23, 24 or 25 of the Offences Against the Person Act 1861;
(d) of actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861;
(e) of common assault contrary to section 39 of the Criminal Justice Act 1988; or
(f) of a racially or religiously aggravated offence contrary to section 29 of the Crime and Disorder Act 1998
may, as well as sentencing him or dealing with him in any other way, make an order under sections 5 or 5A, as appropriate, of the Protection from Harassment Act 1997..(Mr. Garnier.)

Brought up, and read the First time.

Edward Garnier: I beg to move, That the clause be read a Second time.
The new clause, which stands in my name and those of my hon. Friend the Member for North-West Norfolk, was suggested to me by a number of Crown court judges who have had cases in front of them where people have been convicted of offences of violence, particularly against family members and often against their wives or female partners; but the court is not permitted under the current law, even where there has been a conviction of common assault, actual bodily harm or one of the other offences listed in the new clause, to order that the defendant or the respondent be subjected to a restraining order under sections 5 or 5A of the Protection from Harassment Act 1997. They tell me that it would be a useful addition to their powers to be able not only to deal with a defendant under the substantive defence, but to issue an order restraining them from molesting or otherwise interfering with or harming the victim. That would be a sensible addition to the Crown courts powers.
The new clause says:
A court sentencing or otherwise dealing with a person...convicted or acquitted of an offence.
That wording is used because there may often be evidence insufficient to convict a defendant on the substantive offence of violence but which none the less persuades the judge that that person ought to be injuncted from harassing or molesting or otherwise interfering with the victim. That is why it says,
convicted or acquitted of an offence
under the relevant statutes. Based on the representations that I have had from a number of Crown court judges, I urge the Committee to consider the good sense of new clause 34.

Bridget Prentice: I am grateful to the hon. and learned Gentleman for giving us the opportunity to discuss the 1997 Act, but I hope that I will be able to convince him with a few short comments that the new clause is now unnecessary. It is unnecessary because once section 12 of the Domestic Violence, Crime and Victims Act 2004 is commenced, orders under sections 5 and 5Athe restraining orderscan be made in respect of any offence where a person is convicted or acquitted. There is no need to list the particular offences, as is done in the new clause.
The new clause would also require section 12 of the 2004 Act to have been brought into force, but until that is so there is no section 5A of the 1997 Act, so no order could be made under that section in relation to a person acquitted of an offence. Once section 12 is in force the new clause is not needed.
Coincidentally, the Home Secretary yesterday launched the consultation paper, Together we can end violence against women and girls, in which she announced that section 12 will be implemented from September. On that basis, I ask the hon. Gentleman to ask leave to withdraw the new clause.

Edward Garnier: I will withdraw it on the basis that the Government have at last implemented a clause from a 2004 Act. It is absurd that we have a Government who spew out headlines saying, We are protecting women; we are doing this, that and the other, but do absolutely nothing about it. It is no wonder that Crown court judges have been contacting me to say, Would you please table a new clause that provides us with powers under the Protection from Harassment Act, so that we can use them? I would accept criticism if section 12 had come into force in 2004, 2005, 2006, 2007 or 2008 and I had failed to spot that. But it is not in force and it will not be in force until September.
It is outrageous that women are being left vulnerable in the absence of the protection orders and the Home Secretary swans around saying, Here is another consultation; we will do something about it by September. It really is not good enough. I am sorry to end my formal deliberations on that point. It just illustrates the way in which the Government approach the making of legislation. It is not good enough, but I will ask the Committee not to do whatever it does with new clause 34. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 38

Abolition of rule in Hollington v. Hewthorn
Notwithstanding any rule of common law to the contrary, a finding of fact in legal proceedings before any court or tribunal is admissible as evidence of the existence of that fact in legal proceedings before any other court or tribunal..(David Howarth.)

Brought up, and read the First time.

David Howarth: I beg to move, That the clause be read a Second time.
The new clause was suggested to me by Professor John Spencer, and since his name has been taken in vain so many times in the Committee, although not quite as many times as that of David Thomas, I thought it only fair that it be given an airing.
The rule in Hollington v. Hewthorn is a nuisance that keeps cropping up from time to time in the courts and it usually has to be dealt with in a fairly ad hoc way. Hollington v. Hewthorn was a case in 1943 that purportedly laid down the rule that a finding of fact by a court in one case was not admissible in evidence, let alone conclusive proof of the existence of that fact in another case in which either or both the parties were different. It is rather extraordinary that this rule came into existence, but it has caused trouble ever since. I should stress that the rule says that the previous case is not even admissible as evidence about the fact. It is nothing to do with proving the fact. It cannot even be mentioned as evidence.
Section 73 of the Police and Criminal Evidence Act 1984 made a major exception to the rule by creating a rebuttable presumption that the person convicted of an offence actually committed it. It did not abolish the rule; it merely made an exception to it in respect of convictions imposed by UK courts. At that point it seemed that the Hollington v. Hewthorn rule would survive as regards foreign convictions. Then a case called Kordasinski came to the Court of Appeal and the court managed to get round Hollington v. Hewthorn by claiming that they had been abolished to some extent by section 99 of the Criminal Justice Act 2003, and so in that particular case evidence of a foreign conviction was admitted as evidence of the underlying facts of that case. Kordasinski was a bit of a strained interpretation, and the Court of Appeal followed that up with another strained interpretation on the other issue of whether one could use findings of fact in civil cases in subsequent criminal proceedings.
In a case called Hogart in 2007 this issue arose, where the Court of Appeal again got around Hollington v. Hewthorn by claiming that in that particular case it was displaced by section 117 of the Criminal Justice Act 2003, which is about the hearsay rule, and it was able to say that the evidence was admissible because it came within the category of a document. The rule is generally reviled, and whenever the matter comes up in a new context the Court of Appeal tries to get round it, but the arguments by which it does that are strained and not logical. They are simply a means to an end.
Many people think the simplest thing to do is to abolish the rule formally by statute. The arguments against doing so are, first, that it is not necessary because the rule has already been abolished, but the trouble is that it has not been abolished. Parts of it have been abolished, but parts of it remain, and it is never entirely clear where it might pop up next to cause yet more trouble. Secondly, one could say that although it has not been abolished the courts usually manage to get round it when it comes up; but that is not always so. In Conlon and Another v. Simms last year that did not happen, and the rule was said to prevail. When people manage to get round the rule, they do so only after going to the Court of Appeal, which is time-consuming and expensive. The best thing is to avoid difficulty in future, and to accept the new clause saying that the rule is abolished.

Maria Eagle: I agree with some of what the hon. Gentleman says, but I would have to scurry back to the texts to see whether I agree with all that he says. I certainly agree that Hollington v. Hewthorn is a Court of Appeal case from 1943, which established a rule that previous judgments and verdicts are inadmissible as evidence of a fact on which they are based, at least as far as proceedings involving different parties are concerned.
As far as previous convictions are concerned, the rule was abolished for civil proceedings by section 11 of the Civil Evidence Act 1968 and for criminal proceedings by sections 74 and 75 of the Police and Criminal Evidence Act 1984. Clause 124 and schedule 15 of the Bill extend section 74 of the 1984 Act to allow previous convictions in other member states to be admitted for this purpose. I am not entirely convinced that new clause 38 would not cause at least as many problems as the hon. Gentleman seeks to avoid, because the wording would take the provision considerably further and allow any court or tribunal to accept as a fact anything that has been accepted as a fact in any previous proceedings, whatever they were.

David Howarth: Fortunately, Professor Spencer anticipated that argument. The point is that new clause 13 does not say that the court may accept as a fact; it simply says that it may accept as admissible in evidence. It does not have to accept the fact; it can just take it into account.

Maria Eagle: There are some difficulties in expecting or telling a court that it can accept a finding on a factual matter in civil proceedings in any country, whether in the UK or elsewhere in Europe or the world, and that that may be admissible as evidence of that fact in criminal proceedings.
The new clause goes a long way, and a fundamental feature of the law in this country is that not all evidence is admissible. The new clause would create a significant and anomalous exception to that principle, and might cause more problems than the ones that the hon. Gentleman seeks to get rid of. I am not convinced that we should accept it, but I am happy to ask departmental lawyers to see whether they agree with the points that are being made. I am not in a position to accept such a new clause at the moment, and I believe that it would cause more problems than it would solve.

David Howarth: All I can say is that the debate has shown yet again not only how clear thinking Professor Spencer is, but how prophetic he is about ministerial replies to debates in parliamentary Committees.
I am glad that the Minister has undertaken to go away and think about this issue some more. I do not accept what she says about the consequences. The consequences are merely to abolish the rule in Hollington v. Hewthorn, which has been a nonsensical rule and causes more trouble than it is worth. However, on the basis that she has undertaken to think about this issue a little more and perhaps will read the textbooks, which, as far as I can tell, have mainly been written by Professor Spencer himself, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Ordered,
That certain written evidence already reported to the House be appended to the proceedings of the Committee.(Bridget Prentice.)

Bridget Prentice: On a point of order, Mr. Cook. I just wanted to make a point of order in relation to the completion of the Committee stage of the Bill. First, I want to say on behalf of the Committee that we are indebted to you, Mr. Cook, and to your co-Chair, Mr. Gale, for the patient and expeditious way in which you have ensured that the Bill has had a fair hearing and that proper scrutiny of a very large and disparate Bill has taken place. It is certainly thanks to your leadership that we were able to scrutinise it properly, so much so that, as the Committee has seen, we have already made major changes, not least the withdrawal of clause 152.
I also want to add our thanks to the Clerks and the Hansard writers. I thank the former for their wise counsel and the latter for reminding us, and the press, that they are the guardians of accuracy, and yet they are far speedier than anyone else at making such a report widely available.
I also thank the officials. There are probably more teams of officials on this Bill than I have ever come across; there are probably more teams of officials than there are teams in the Champions League at the moment, possibly in all European competitions. We are grateful to them for the comprehensive notes that they have provided. Also, of course, on behalf of my fellow Minister, I offer our thanks to our private offices, who have given us excellent support. I also thank the Bill manager, who I think has been the only official who has stayed on the field while others were being substituted at a rate of knots. That is a feat worthy of a medal in itself.
I also want to thank all members of the Committee, from all parties, who have participated in this debate in good spirit, with constructive and very knowledgeable views and interventions. I think that it is the first time for a long time that I have been on a Committee in which every single member has made a contribution at some point, apart perhaps from the Scottish National party MP, the hon. Member for Moray, who has not turned up yet.
In particular, I would like to thank my hon. Friend the Member for Wrexham, who has gained a few grey hairs in the past few weeks. However, he has firmly but gently ensured that we have kept to a reasonable timetable, with, of course, the support of the hon. Member for Rugby and Kenilworth. If the Whips Office had kept up the tradition that was started when I was in the Whips Office, my hon. Friend would be Whip of the week, as a result of his efforts on this Bill.
Finally, I want to pay special thanks to the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston. She is not known to take prisoners, but she has steered us through some of the very detailed, technical and often controversial parts of the Bill, with her usual professionalism and deep knowledge of her area of work. Our thanks go to our Parliamentary Private Secretary, who has been here handing us notes as and when it has been needed.
As a result, we have ended up with a better Bill than the one we started with and that is as it should be. It is a recognition of the importance and strength of scrutiny, and that also is as it should be. We now have a Bill that, although it will change in the course of its progress through the House and elsewhere, puts witnesses, victims and the bereaved at the heart of the judicial system, and that too is as it should be.

Edward Garnier: Further to that point of order, Mr. Cook. I do not want to upset you, but merely to thank you for your chairmanship of the Committee, along with Mr. Gale. It has been a pleasure to serve with you.
I cannot say that I think the Bill is quite so splendid as the Minister claims it is. She said candidly that it is a large and disparate Bill, as I dare say it will remain. I wonder whether it will be implemented before an eight-year gap.
I join her in thanking the staff of the House, particularly from the Public Bill Office under the leadership, in this Committee, of Mr. Alan Sandall. I am grateful to him and his colleagues for the help and assistance that we get from them in the absence of civil service officials, whom the Minister properly thanked. I also thank the police officers and Doorkeepers who have helped us in the past few weeks.
I particularly thank my hon. Friends the Members for North-West Norfolk and for Rugby and Kenilworth, who have had to listen to my feeble remarks and even feebler jokes from time to time. I also thank my hon. Friends the Members for North Wiltshire and for Daventry for their contributions to the Committee.
This has been a pretty happy Committee, at least in the relations that we have had in the room and between ourselves as individuals. I hope that the Bill is given a thorough grilling when it gets to the other place and I look forward to considering Lords amendments in due course.

David Howarth: Further to that point of order, Mr. Cook. If I could try your patience for a minute, I should like to add my thanks to you and Mr. Gale for your extraordinary patience throughout the Committees proceedings, which seem to have gone on for a very long time. It has been very exhausting for all concerned.
I also thank the Clerks, Hansard and other House staff. I especially thank my hon. Friend the Member for Cardiff, Central, who has taken on major parts of the Bill in what is, I believe, her first major Bill Committee. She did so with great aplomb.
There have been major changes as a result of the Committee. This stage of the Bills passage has been unusually effective, even if it has been very long. The removal of clause 152 is a major change and a major achievement. The undertakings to make changes to the jurors and coroners part of the Bill are equally important. I hope that the Government take some time to think about what they will do next with the Bill, and that they do not rush into the next stages too quickly. If they do, they might find the Bill going rather more slowly through the House of Lords than otherwise.

Frank Cook: Points of order require a ruling. In the nearly 27 years that I have been in the House, that is the lengthiest point of order I have ever heard, and probably the most spurious. Nevertheless, I thank you for your kind remarks on behalf of myself and my co-Chairman.

Bill, as amended, to be reported.

Committee rose.